The nature of South Africa’s legal obligations to combat xenophobia · 2018. 4. 19. · The...

The nature of South Africa’s

legal obligations to combat xenophobia

Centre for Human Rights, Faculty of Law,

University of Pretoria

2009

The nature of South Africa’s legal obligations to combat xenophobia

Published by:The Centre for Human RightsFaculty of LawUniversity of Pretoria

For more information, please see www.chr.up.ac.za

Printed and bound by:ABC PressCape Town

To order, contact:Centre for Human RightsFaculty of Law University of PretoriaSouth Africa0002Tel: +27 12 420 3810Fax: +27 12 362 [email protected]

Cover:Yolanda Booyzen, Centre for Human Rights

Photographs:Jauffré Basubi (Our Voice)

ISBN: 978-0-9814124-9-8

© 2009

The financial assistance of the Open Society Foundationis gratefully acknowledged.

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TABLE OF CONTENTS

Abbreviations and accronyms v

Preface viii

Executive summary 1

1 Introduction 7

2 Rationale for the study 11

3 Methodology 123.1 Sampling method 123.2 Data analysis method 13

4 Research questions 15

5 Ethical considerations 16

6 Literature review 17

7 Terminology 277.1 Xenophobia 277.2 Legal obligations 307.3 Foreign nationals 307.4 Asylum seekers 317.5 Refugees 337.6 Migrant workers 347.7 ‘Economic refugees’ 367.8 Internally displaced persons 377.9 Illegal immigrants 38

8 Sociological research findings 418.1 South African respondents 418.2 Non-South African respondents 45

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9 What are South Africa’s legal 50obligations, if any, regarding xenophobic violence against foreign nationals?9.1 The general responsibility of states 50

over foreign nationals 9.2 International human rights norms 54

and responsibility over foreign nationals

9.3 South Africa’s general obligations 56over foreign nationals

10 South Africa’s obligations in 71respect of xenophobic violence

10.1 The factual background 7110.2 The legal framework in relation 71

to violence 10.3 The liability analysis 7710.4 Preliminary conclusion 80

11 What are South Africa’s obligations, 83if any, regarding the repatriation of foreign nationals resident in its territory?11.1 The factual background 8311.2 The legal framework with 85

regard to repatriation11.3 The principle of non-refoulement 8611.4 Deportation of refugees and 89

asylum seekers is contrary to international law principles and contrary to South Africa’s Refugee Act

11.5 Liability analysis 90

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12 What are South Africa’s obligations, 95if any, regarding access to socio-economic rights by foreign nationals resident in South Africa12.1 The factual background 9512.2 The legal framework in 95

relation to access to socio-economic rights

12.3 Liability analysis 102

13 What are South Africa’s legal 106obligations, if any, in respect of re-integrating victims of xenophobic violence?13.1 Factual background 10613.2 Legal framework and liability 107

analysis

14 What are South Africa’s obligations, 112if any, in respect of preventing future recurrence of xenophobic violence?

15 Recommendations 11415.1 General recommendations 11415.2 Immigration 11515.3 Violence 11515.4 Repatriation 11615.5 Access to socio-economic rights 11615.6 Reintegration 117

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ABBREVIATIONS AND ACCRONYMS

ACHPR African Charter on Human and Peoples’ Rights

ANC African National Congress and Members of their Families

APRM African Peer Review Mechanism

AU African Union

CC Constitutional Court

CDREO Convention concerning Discrimination in Respect of Employment and Occupation

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CERD Convention on the Elimination of all forms of Racial Discrimination

CMW Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

CRC Rights of the Child

CRD Convention on the Rights of the Child

CRMWMF Convention on the Rights of All Migrant Workers

ICCPR International Covenant on Civil and Political Rights

ICCPR International Covenants on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

IDPs Internally displaced persons

ILO International Labour Organisation Convention

OAS Organisation of American States

OAU Organisation of African Unity

RDP Reconstruction and Development Program

RRC Refugee Reception Centre

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SADC Southern African Development Community

SAHRC South African Human Rights Commission

SAMP Southern African Migration Project

SAPS South African Police Services

SCA Supreme Court of Appeal

UDHR Universal Declaration of Human Rights

UN United Nations

UNHCR United Nations High Commissioner for Refugees

WCAR World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance

WCRRDXRI World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance

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PREFACE

In March 2008, a wave of xenophobic violence sweptacross many parts of South Africa, including Tshwane.This study aims to provide an analysis of the potentialrole that law, and particularly human rights law, mayplay in combatting such violence and its root causes.

The study considers the issue from a multi-disciplinary perspective, by informing itself of the views of both nationals and non-nationals on pertinent issues. To this end, in-depth interviews have been conducted and are reflected here. This presents a tentative step towards socio-legal analysis, and is part of the Centre’s broadening of its research focus from strictly legal to more multi-disciplinary. The Centre for Human Rights contracted a senior sociology student, Tau Tawengwa, to conduct this part of the research.

Against this background, an analysis is made of South Africa’s legal obligations, deriving from its Constitution as well as United Nations and African Union treaties to which it is a state party. Two doctoral students at the Centre, Tarisai Mutangi and Waruguru Kaguongo, were responsible for this aspect of the research.

Although this publication appears some time after the events have occurred, it aims to be part of an ongoing reflection about ways in which a recurrence of the very unfortunate events of 2008 may be prevented.

The financial assistance of the Open Society Foundation in preparing and publishing the research results is gratefully acknowledged.

The report is also available on the Centre’s website, www.chr.up.ac.za.

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Executive summary

Starting in March 2008, a wave of xenophobic violenceswept across many parts of South Africa. This may nothave been the first time it had occurred, but it was thefiercest manifestation of xenophobia to date in SouthAfrica.

These events caused serious violations of thehuman rights of many people living among us,including within Tshwane. The Centre for HumanRights, at the University of Pretoria, undertook aresearch project on the role of human rights law inaddressing xenophobia in South Africa. The researchlooks into the causes and some pertinentmanifestations of human rights violations, andinvestigates what the role of human rights law hasbeen in addressing xenophobia and how its role couldhave been more pronounced.

The legal analysis was informed by in-depthinterviews of 40 respondents from refugee camps,‘townships’ around Pretoria and from the Law Facultyof the University of Pretoria. Arising from theseinterviews, the South African government’s legalobligations are considered. In particular, the studyexamines the government’s obligations to respond toviolence, in respect of repatriation, reintegration,access to socio-economic rights and obligations inrespect of prevention of future xenophobic attacks.

The study uses the term ‘foreign nationals’ tobroadly include all non-South Africans residents withinSouth Africa. Within this circle, the study identifiesdocumented foreign nationals as those who have beenaccorded refugee status or who are recognised asasylum seekers, in possession of official documents

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testifying to this fact. These categories of persons arelegally within South Africa. Undocumented foreignnationals, also often referred to as illegal immigrants,are those residing in the country without officialpermission. This categorisation is thus dependent onwhether the persons in question are officiallyrecognised by immigration authorities or not. Otherterms used to describe foreign nationals reflect thereason why they are within the country or why they lefttheir country of origin. Such categories include‘economic refugees’, and ‘migrant workers’, who maybe within the borders of South Africa legally orillegally, but are here for economic reasons. ‘Internallydisplaced persons’ as a category overlaps with othercategories, and refers to those uprooted from theirusual place of residence who find themselves withinSouth Africa.

The main sources of South Africa’s relevant humsnrights obligations are found at the international andnational level. At the global level, South Africa hasratified the International Covenant on Civil andPolitical Rights, the Convention on the Elimination ofall forms of Racial Discrimination, the Convention onthe Rights of the Child, the Convention on theElimination of All Forms of Discrimination AgainstWomen, and the ILO’s Convention 111 concerningDiscrimination in respect of Employment andOccupation. South Africa also committed itself toimplementing the programme of action developedduring the World Conference against Racism, RacialDiscrimination, Xenophobia and Related Intolerance in2001.

At the regional level, the African Charter onHuman and Peoples’ Rights, as well as the OAUConvention Governing Specific Aspects of RefugeeProblems in Africa, are relevant. Although the SADCframework does not explicitly speak of human rightsissues, reference is made to rights and freedoms in theAfrican Charter on Human and Peoples’ Rights, the

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Universal Declaration of Human Rights and ILOConventions.

At the national level, the Constitution of SouthAfrica and the Refugees Act are among the mostimportant sources of the state’s obligations.

Summary of findings

1 Violence

South Africa has an obligation to respect and protectall persons resident within the country from violationsof their right to liberty and security of person. In thecontext of the xenophobia the state is obliged toprotect victims from attacks by non-state actors, thatis, the individuals who perpetrated the violence. In2008, the government failed to discharge thisobligation and continues to violate the obligation byfailing to provide remedies.

2 Repatriation

The principle of non-refoulement obliges states not toreject or return refugees, asylum seekers and otherimmigrants (illegal immigrants included) back to theircountry of origin or any other country without regardto the persistence of persecution in the territorieswhere they are repatriated. The state has a duty in linewith the non-refoulement principle not to returnrefugees and asylum seekers to territories where theymight face persecution unless through a normalasylum application process, the applicant has failed toqualify for protection or has exhausted availableappeal procedures. In the aftermath of the xenophobicviolence, refugees, asylum seeker permit holders andundocumented migrants were directly deported enmasse. By virtue of deporting refugees and asylumseekers without having established whether indeedthey were in the country illegally, because victims had

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no official documentation, where the possibilityexisted that such documentation was destroyedduring the violence; and by subjecting victims tounbearable detention conditions, the stateconstructively refouled genuine migrants back toterritories where migrants expressed a well-foundedfear of persecution on their return.

3 Access to socio-economic rights

The state is obliged to realise the socio-economicrights of all persons within South Africa. No distinctionis made in the Constitution between nationals andforeign nationals in relation to socio-economic rights.To the extent that state officials were implicated intheir capacity as such, in unlawfully destroying identityand immigration documents and the means oflivelihood of foreign nationals, this constituted abreach of the obligation to respect the right to accesssocio-economic rights for foreign nationals. By failingto prevent the violence that destroyed the livelihoodsof xenophobia victims, the state similarly failed toprotect their rights. To the extent that the perceptionthat refugees are not entitled to access social servicesserved as a basis for the violence and the state has nottaken action to counter such perceptions, the state isliable for breach of its obligations to fulfil access tosocio-economic rights by foreign nationals. Inaddition, by failing to effectively set out a policy onaccess to socio-economic rights by foreign nationalsthe state has exacerbated and contributed to theproblem of xenophobia.

4 Re-integration

There is no international or national refugee lawobligation to locally integrate refugees, or displacedforeign nationals, for that matter into communitieswithin the states where they find themselves. To theextent that the government undertook publicly to re-

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integrate those displaced, a moral obligation exists todo so. Having decided to act in this manner thegovernment was under an obligation to ensure that itsactions accorded with the expected standards thatgovern re-integration. The government’s action fellshort of such requirements and it was as such inviolation of its obligations.

Summary of recommendations

• South Africa should ratify and domesticate allrelevant human rights instruments, including theConvention on the Rights of All Migrant Workersand Members of their Families.

• The process of state reporting, which is anecessary component of ratifying internationalinstruments, should where relevant, include thesituation of foreign nationals and the measurestaken to ensure that their rights are realised.Measures should be put in place to implement theconcluding observations made by treaty bodies onthese reports.

• South Africa, as the site where the negative eventsrelated to xenophobia took place, as well as thehost nation for the World Conference AgainstRacism, Racial Discrimination, Xenophobia andRelated Intolerance, should inspire and galvanisemore action on the realisation of the goals in theConference Programme of Action.

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1 Introduction

The year 2008 saw an outburst of xenophobic violencein South Africa. South Africa went through one of itsdarkest moments when xenophobic violence brokeout in townships throughout the country during whichforeign nationals were attacked, murdered, stolenfrom and evicted. Isolated incidents of assaults onforeigners, especially around Tshwane, were publiclyreported as early as March of that year. At the end ofMarch, an article in one of the Gauteng newspapersreported: ‘Throughout Monday night and into the earlyhours of Tuesday morning, John1 was holed up in ashack in Atteridgeville with two fellow Zimbabweans.One of them was 35-year-old Tamunorwa Kufandada.He was about to become a fatal victim of the horrificxenophobia that visited the Tshwane area this week.’2

Since then, xenophobic attacks spread through theGauteng region, and to other provinces in SouthAfrica. The violence spread and resulted in internaldisplacement of the victims of a seemingly systematicand organised violence. The violence led to at least 70deaths (throughout the country) of both SouthAfricans and non-South Africans, and a bigger numberof persons injured.

Working closely with civil society and faith-basedorganisations, the government of South Africa reactedby formulating and implementing disastermanagement strategies including setting up refugeecamps to facilitate an organised provision of basicamenities to victims of xenophobic attacks. Thegovernment faced scathing criticism from the public,especially civil society organisations, regarding theappropriateness and sufficiency of these remedialmechanisms.

1 Not his real name.2 The Star (28 March 2008: 6).

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Different spheres of South African society havesubsequently voiced their concerns about theviolence, and many opinions were expressedattempting to pinpoint the causal factors of thisnational catastrophe. The events therefore, gave riseto more questions than answers regarding the natureand form assumed by xenophobia in present daySouth Africa. The violence manifested in a shockinglevel of brutality such that questions pertaining towhether or not such events could have beenprevented; the probability of recurrence; and the roleof various stakeholders dominated the discourse inthe aftermath of the violence. Various organisations3

carried out a number of pilot social science researchprojects. Some scholars and commentators were ofthe view that weak border control coupled with flaweddomestic and foreign policies were the fundamentalcauses of this xenophobia debacle. Others maintainedthat a lack of service delivery, domestically, as well asxenophobic political rhetoric, was to blame for thecrisis.

With this multi-disciplinary research projectentitled The role of human rights law in addressingxenophobia, the Centre for Human Rights, Faculty ofLaw, University of Pretoria attempted to analyse theissue of xenophobia by conducting qualitativeresearch in and around Tshwane; it investigated whatnon-South Africans and South African nationalsperceive the characteristics and causes of thexenophobic violence to be; it analysed how the causescan be addressed or prevented through the legislativeprocess and carried out a legal analysis of SouthAfrica’s national and international legal obligationstowards foreign nationals’ rights during and in the

3 Forced Migration Studies Programme Humanitarian assistanceto Internally displaced persons in South Africa: Lessons learnedfollowing attacks on foreign nationals in May 2008 (January2009). Human Sciences Research Council Violence andxenophobia in South Africa: Developing consensus, moving toaction (October 2008).

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aftermath of the violence. While the qualitativeresearch was conducted by a social scientist, the legalanalysis was undertaken from the perspective ofnational and international law. The synergy betweenthe social science and legal research approaches isused in an effort to fully appreciate the variousmanifestations of xenophobia other than violencewhich dominated the recent events.

Furthermore, researchers of the current projectseek to address these questions by looking atxenophobia not as an independent phenomenon, butin the context of international migration calling intoquestion the protection offered to internationalmigrants by the existing international refugee lawframework.

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2 Rationale for the study

No rationale suits the current study better than themere fact that the violent manifestation of xenophobiaas a phenomenon reflected only one facet of a multi-faceted prism. It is, therefore, necessary to delve notonly into the causes, manifestations andconsequences of xenophobia, but other superimposedpractical issues which have not been addressedsufficiently by earlier research projects. As shall bedemonstrated by the literature review, much of theexisting literature is descriptive by nature, that is, itrecapitulates what happened without delving into thecontentious issues such as the link betweenxenophobia and international migration. The currentstudy seeks to address this content, focusing on thebinding legal (human rights) obligations of the SouthAfrican state.

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3 Methodology

The current study’s social science leg consists of aqualitative data collection by way of standardquestionnaires, one for South African citizens and theother for non-South Africans resident in South Africa,which were used for structured face-to-face interviews.These interviews were conducted with some of therefugees from Akasia refugee camp in Tshwane, in‘townships’ around Pretoria and on the University ofPretoria main campus. In the ‘townships’ most of theinterviews were conducted in the lower income areasof the Tshwane, namely: Mamelodi, Ga-Rankuwa,Atteridgeville and Soshanguve. Research respondentswere asked to sign consent forms, and the interviewswere tape-recorded and transcribed.

With regard to the legal analysis, recourse wasmade to primary sources such as existing literatureespecially on international refugee law4 and itsinterplay with migrant protection regime. This enabledresearchers to assess the adequacy of the existingframeworks and conclude whether or not South Africabreached any existing obligations regarding the issuesidentified in the research questions. The research wasconducted over a period of six months from June toDecember 2008.

3.1 Sampling method

The method used to identify interviewees was non-probability target purposive sampling. This methodentails approaching ‘people on the street’ and askingthem if they are willing to be interviewed, as long asthey meet the criteria of ‘non-South African’ or ‘SouthAfrican’. This method allows for respondents to be

4 By refugee law we refer to the whole national and internationallegal framework for the protection of asylum seekers anddocumented refugees.

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selected at the discretion of the interviewer accordingto predetermined criteria relevant to a particularresearch question. This means, for example, that in aparticular area, the researcher could apply hisdiscretion in deciding to interview a white SouthAfrican, a black non-South African and a secondgeneration South African Indian.

This method was selected because it was the mostfeasible way to get non-South Africans and locals ofpotentially differing class, racial, and educationalbackgrounds to participate in the study. Teninterviews (five of South Africans, and five of non-South Africans) were conducted at the Law Faculty onthe University of Pretoria campus. Ten interviews wereconducted with refugees from camps around Pretoria.Twenty interviews were conducted in ‘townships’around Tshwane.

3.2 Data analysis method

After collecting the necessary data, written transcriptsof the tape-recordings were used to conduct aqualitative thematic analysis and interpretation of thedata.

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4 Research questions

By way of questionnaires used in face-to-faceinterviews, the sociological segment of this researchproject was driven by the following research questionswhich sought to cover issues such as violence againstforeign nationals, repatriation and re-integration ofvictims of the violence, and access to socio-economicrights by foreign nationals:

(i) What are the characteristics and causes of therecent xenophobic violence around Pretoria?(ii) How can these causes be addressed?

In order to prod effectively into the above-mentionedissues from a legal perspective, the following researchquestions arising from the thematic areas identified inthe sociological research outcomes above, informedthe legal dimension of the project:

(a) What are South Africa’s legal obligations, if any, regarding xenophobic violence against foreign nationals?

(b) What are South Africa’s obligations, if any, regarding the repatriation of foreign nationals resident in its territory?

(c) What are South Africa’s obligations, if any, in respect of the re-integration of foreign nationals in South African communities as a long term solution to migration?

(d) What are South Africa’s obligations, if any, regarding access to socio-economic rights by foreign nationals resident in South Africa?

(e) What are South Africa’ obligations, if any, in respect of preventing future recurrence of the xenophobia attacks?

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5 Ethical considerations

In the process of carrying out the sociologicalresearch, a number of ethical issues were taken intoaccount:

• Before interviewing any of the subjects, therespondents were asked to sign a letter ofconsent, which informed them of the researchproject.

• The letters of consent submitted to individualrespondents guaranteed that the data gatheredwould be treated as private and confidential.

• The letters of consent submitted to individualrespondents guaranteed the anonymity of therespondents in the final report.

• The letters of consent guaranteed theconfidentiality of the interviews, meaning that theinformation provided by the respondents wasregarded as privileged and that the identity of therespondents was not to be revealed in any way.

• The letters of consent informed respondents thatthe data will be archived at the Centre for HumanRights and the data may be used for other studies.

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6 Literature review

The above research questions directly speak toxenophobia as a concept within the wider frameworkof international migration. In the view of a number ofscholars, xenophobia is not a new phenomenon inSouth Africa. The majority of South Africans aregenerally seen to be negative to issues that relate tonon-South Africans and xenophobia.5 A study carriedout by the Southern African Migration Project (SAMP)concluded that most South Africans are ‘latentxenophobes’.6 Xenophobic sentiments are not uniqueto South Africa. Incidents of xenophobia have beenexperienced all over the world. Xenophobia againstmigrants is indeed a current issue in Europe.7 What isunique to South Africa is the extreme and widespreadhostility in attitudes and the violence accompanyingthis intolerance.8

Xenophobia has been seen as a consequence ofthe eradication of the apartheid system in SouthAfrica. One author writes: ‘In retrospect, the origins ofSouth Africa’s xenophobia can be traced to 1994 withthe advent of majority rule, when thousands, evenmillions, of other Africans entered the country for ashare of what the new state offered. However, it first

5 See J Crush (ed) ‘The perfect storm: The realities of xenophobiain contemporary South Africa’ Southern Africa Migration ProjectMigration Policy Series No 50 (2008); L Landau, K Ramjathan-Keogh et al ‘Xenophobia in South African and problems relatedto it’ Forced Migration Working Paper Series No 13, ForcedMigration Studies Programme University of the WitwatersrandJanuary 2005.

6 J Crush ‘The dark side of democracy: Immigration, xenophobiaand human rights in South Africa’ (2000) 38 Internationalmigration 103-133.

7 European Monitoring Centre on Racism and Xenophobia‘Migrants experiences in racism and xenophobia in 12 EUMember States: Pilot Study’ May 2006) http://raxen.fra.europa.eu/1/webmill.php?id=32835&doc_id=57557 (accessed25 September 2008).

8 Crush (n 5 above) 1.

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appeared as a disgusting force that attractedinternational attention in 1998 when three non-nationals were attacked and killed by a mob of SouthAfricans for the reason that they were stealing theirjobs.’9 Several other studies have investigated thecauses of xenophobia with varied reasons emerging.Recurrent themes are those that portray foreignnationals as primarily an economic threat, taking upjob opportunities and social services meant for thelocals.10 Other cited causes of xenophobia are theperception of foreigners as a threat to physicalsecurity, racism, isolation and nationalism, politicalscapegoats, a lack of knowledge about foreignnationals and their rights.11

Various explanations have been given for thexenophobic attitudes and subsequent actions, rangingfrom anecdotal to more psychosocial propositions. Inthe media and in popular discourse, foreign nationalsare associated with crime, trafficking, drugs, diseaseincluding HIV, and other social ills. Thecharacterisation of foreign nationals as ‘illegal’ servesto enhance the association with ‘unlawfulness’ whichin turn encourages the dislike and expulsion of foreignnationals from communities. In spite of popularperception, studies show that foreign nationals aremore often victims of crime than its perpetrators.12

9 The Centre for Advanced Studies of African Society (2001) 13.10 Report on Open Hearings on Xenophobia and problems related

to it hosted by the SAHRC and the Parliamentary PortfolioNovember 2004; B Harris ‘Xenophobia: A new pathology for anew South Africa’ in D Hook & G Eagle (eds) Psychopathologyand Social Prejudice (2002)

11 Landau et al (n 5 above); Report on Open Hearings (n 10 above);Harris (n 10 above).

12 Media Monitoring Project ‘Shades of prejudice: An investigationinto the South African media’s coverage of racial violence andxenophobia’ (2007) 59 available) http://www.mediamonitoringafrica.org/index.php/resources/entry/shades_of_prejudice/(accessed 3 February 2009).

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According to Harris, explanations can becategorised as the scapegoating, isolation and bio-cultural hypotheses.13 The first hypothesisemphasises the blaming of foreigners as ‘scapegoats’for social and economic difficulties experienced.Foreigners are as such seen as the reason whymembers of the local community do not haveadequate jobs, houses, education and so on. Thequestion as to why foreigners bear the brunt and nota different social group or individuals might beexplained by the isolation from the internationalcommunity that South Africa experienced during theapartheid years. Isolation was also experienced withinthe country as communities were prevented frominteracting with one another. Such isolation makes itharder for South Africans to tolerate difference. Thebio-cultural hypothesis explains why foreign nationalsfrom particular countries are singled out more oftenfor xenophobic hostility and violence than otherforeign nationals. The answer lies in the visiblephysical differences in terms of biological and culturalfactors that distinguish some nationalities.

The South African Human Rights Commissiontakes the view that many of the xenophobicsentiments are based on a lack of information onforeigners and their rights.14 Ignorance andunfamiliarity with the different cultures of foreignnationals, root causes of migration promotes theentrenchment of myths and misconceptions that thenresult in xenophobic attitudes and actions.

13 Harris (n 10 above). See also L B Landau et al ‘Xenophobia inSouth Africa and problems related to it’ Background paper forSAHRC Open hearings on Xenophobia and problems related to it(2004).

14 South African Human Rights Commission (SAHRC) ‘Report of theOpen hearings on xenophobia and problems related to it’ (2004)available http://www.sahrc.org.za/sahrc_cms/publish/cat_index_41.shtml (accessed 27 September 2008).

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These perceptions also play out in the media whichhas often encouraged a ‘siege mentality’ whenreporting on foreign nationals by giving theimpression that foreigners were ‘taking over’ SouthAfrica.15 The absence of critical discourse aroundnews items involving foreign nationals encouragesnegative stereotyping of foreigners.16 The role whichthe media plays in portraying and fuelling xenophobicsentiment has been investigated with the findings thatthe media often labels the majority of migrants fromAfrica as ‘illegal immigrants’ and continues to ignorethe diversity between different categories ofmigrants.17 This negative discourse reinforces thenotion of ‘inherent criminality’ of foreign nationals.Although such stereotyping is not actively encouragedwithin the media, it is perpetuated because the mediadoes not challenge those stereotypes or activelyengage in more positive discourse around foreignnationals.18

Not all commentators agree that xenophobia isfuelled by the intense competition for limitedresources and jobs.19

On the other hand, Michael Neocosmos20 speaksof ‘state discourse’ as a fundamental cause of

15 Crush (n 5 above) 14.16 Media Monitoring Project (n 12 above).17 Media Monitoring Project ‘Shades of prejudice: An investigation

into the South African media’s coverage of racial violence andxenophobia’ (2007) 59 available http://www.mediamonitoringafrica.org/index.php/resources/entry/shades_of_prejudice/(accessed 3 February 2009).

18 As above.19 For example, Singer (2000) is of the opinion that xenophobia in

South Africa reflects South Africans’ growing frustration with therewards of transformation. He is of the opinion that the greatexpectations aroused by political transformation in this countryhave been unmatched by service-delivery, and as a result, SouthAfricans have used foreigners as scapegoats to blame forunfulfilled expectations.

20 Neocosmos 2006 http://www.pambazuka.org/en/category/features/48712.

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xenophobia, writing that ‘government departments,parliamentarians, the police, the Lindela detentioncentre, the law itself have all been reinforcing a one-way message since the 1990s: “We are being invadedby illegal immigrants who are a threat to nationalstability, the RDP [Reconstruction and DevelopmentProgramme], development, our social services, thevery fabric of our society”.’21 Neocosmos highlightsthat comments made by the former minister of homeaffairs Mr Mangosotho Buthelezi, referring to Nigerianimmigrants as ‘criminals and drug traffickers,’22 arethe very examples of political and state discoursewhich stimulate xenophobia within state institutions,such as the South African Police Service, and in thegeneral public.

The linkage between xenophobia and immigrationis undoubtedly a close one. Immigration policies alsohave a role to play in the exacerbation of xenophobicsentiments and actions.23 Immigration policy andissues related to nationality and citizenship are withina state’s sovereign domain. A distinction needs to bemade between immigration policy that is legitimate inits ambit, aimed at managing migration, and one bornout of fear and hostility towards foreigners, thatapproaches migration from a security and controlparadigm.24 Some of the responses in the SouthernAfrica Migration Project (SAMP) study that portraycitizens as willing to take even unconstitutionalmeasures to ensure that foreign nationals are kept outof the country come from a citizenry ‘that feels undersiege from the outside’.25

Xenophobic sentiments in South Africa areassociated with the feeling or perception of the

21 As above.22 As above.23 ILO IOM OHCHR ‘International Migration, Racism, Discrimination

and Xenophobia’ (2001) 2.24 Valji (n 15 above).25 Crush (n 6 above) 110.

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country being overwhelmed by foreign nationals.These perceptions have been documented in varioussurveys, with a majority of South Africans favouringstronger immigration controls.26 The SAMP 2006study published in 2008 shows that increasingnumbers of South Africans favour strict limits or a totalban on immigration.27 Those in favour rose from 65percent in 1997 to 78 percent in 1999. Seventy-sixpercent of South Africans in 2006 of the surveyedsample wanted the borders electrified; up from 66percent in 1999.28 There is strong support for thedeportation of foreign nationals, even those livinglegally within the country. Refugees find themselves ina similar position, with 47 percent supporting theirprotection, 30 percent opposed thereto and nearly 20percent having no opinion on the matter. In 2006negative attitudes towards foreigner grew worse, with67 percent of South Africans perceiving foreigners asusing up resources, compared with 59 percent in1999.29 The ideas that foreign nationals areassociated with crime and bring disease respectivelywere held by 67 percent and 49 percent as opposed to45 percent and 24 percent respectively in 1999. Fromthe survey it also emerged that xenophobic attitudesvary between race groups, class, income, educationlevel, with slight differences depending onemployment status and political party affiliation.Generally xenophobic sentiment and attitudes aremore prevalent amongst whites than blacks andamongst the poor and working class and wealthy thanthe middle class.30

In terms of the immigrants who enter the country,commentators generally hold the view that economicand political turmoil, which usually coincide, in theirown countries inspire immigrants to relocate to more

26 Crush (n 5 above) 1.27 As above.28 As above.29 As above.30 Crush (n 5 above) 5.

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stable regions such as South Africa. AntoineBouillon,31 writing on Francophone Africanimmigrants who travel to South Africa, is of theopinion that ‘more often than not South Africa is asecond choice for them. Actually, many of them hadalready been in Europe or America before, or in aforeign African capital — some even came directlyfrom there — and many still idealize getting to Europeor North America or another destination, if only theycould. That fact is that the opening up of SouthAfrica’s borders coincided with a further tightening upon immigration in Europe, following the signature ofthe Schengen Convention on 19 June 1990, with visarestrictions, asylum restrictions, naturalizationrestrictions, expulsion of “clandestine” immigrants,voluntary repatriation schemes, etc., being applied.’ Itremains then, a possibility that if the same strictnessin terms of migration restrictions was to be applied inSouth Africa, the xenophobic incidence could beaverted or decreased.

Solutions to the question of xenophobia includestrengthening of integration policy as a possiblestrategy. It has been suggested that beyond a policythat determines who is allowed into the country, stepsshould be taken to enhance integration and socialcohesion between migrant non-nationals andmembers of the host society.32 Examining the crisisresulting from the xenophobic attacks from a disastermanagement perspective elicited shortcomings in themanner in which relevant actors responded.33 Theimmediate, medium-term and long-term measures

31 The Centre for Advanced Studies of African Society (1998:11)32 IDASA ‘Migration and Social Cohesion’ available http://

www.idasa.org.za/index.asp?page=output_details.asp%3FRID%3D1682%26OTID%3D5%26TID%3D18 (accessed 3 February2009).

33 Forced Migration Studies Programme Humanitarian Assistanceto Internally Displaced Persons in South Africa: Lessons LearnedFollowing Attacks on Foreign Nationals in May 2008 (January2009).

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taken to respond to the displacement of thousands ofvictims of xenophobia are an important indicator as tothe preparedness of relevant actors in the preventionand the handling of similar emergency situations. Inthe case of the violence that erupted in May 2008,government, civil society and international institutionresponses were found to be inadequate, in partbecause of the lack of clarity regarding the rights ofthe foreign nationals displaced by the violence, a gapthis study fills.34 The African Peer Review Mechanism(APRM) considered racism and xenophobia as one ofthe cross-cutting issues that affects the political,economic and corporate governance in South Africa.35

The APR team recommended that the governmentreconsider the current handling of undocumentedmigrants since the procedures did not result in adecline in the number of illegal immigrants enteringthe country.36

As to existing literature on the rights of migrantswho fell victim to xenophobic violence, under thediscussion on diplomatic protection and stateresponsibility over ‘aliens’, Dugard37 deals with thequestion of minimum standard of treatment of foreignnationals by host states as a matter of internationalpractice. The author maintains a position wellsupported by other scholars such as Borchard.38 Theconclusion arrived at by these scholars is that thestandard of treatment of foreign nationals has sincechanged from the international standard to one set bythe human rights movement.

34 As above.35 APRM Country Review Report South Africa (2007) 311 http://

www.aprm.org.za/docs/SACountryReviewReport5.pdf (accessed6 April 2009).

36 As above. The existence of xenophobia in South Africa wasdisputed by President Thabo Mbeki when the country was peerreviewed by the APR Forum at 377-8.

37 J Dugard, International Law-A South African Perspective (3rd ed)(2005) 281.

38 E Borchard, ‘The “Minimum Standard” of the Treatment ofAliens’ (1940) 38 Michigan Law Review 445.

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http://www.aprm.org.za/docs/SACountryReviewReport5.pdf




Having determined the standard of treatment,there is need to review literature that examines therefugee status determination process so that issuessuch as repatriation, re-integration, access to humanrights by foreign nationals are fully discussed. In thisarea, Goodwin-Gill and J Macadam’s The Refugee inInternational Law is arguably one of the leadingsources.39 The authors bring to the attention of thereader all issues ranging from the definition of arefugee or asylum seeker up to the time his or herrefugee status has been determined. There is aconsensus that people fleeing political persecutionshould have access to human rights in the host state,they should not be forcibly repatriated whilst thedanger of persecution still persists and, although hoststates are not legally required to integrate refugees,that possibility should always be entertained as one ofthe few durable solutions to the problem ofinternational migration. It is within the context of thisliterature that the current research project wasconceived and set. This study fills a gap in which therights of the different categories of migrants in thecontext of xenophobia have not been explored.

39 GS Goodwin-Gill & J Macadam, The Refugee in International Law(2007).

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7 Terminology

The scope of the current research project makes itmandatory for us to deal with terminology for tworeasons. The first is that the current project is acombination of social science and legal research andterms may be ascribed different meanings in thedifferent fields. The other reason is to define the scopeand parameters of the project by delineating thesubjects of the research. For instance, the word‘migrants’ refers to all foreign nationals who enteredSouth Africa through different characterisations ofstatus but are bundled together in this descriptiveterm simply because they originated from a differentcountry. It is perhaps needless to say that researchprojects are never meant to cover everything, but toaddress a particular issue or question of interest tosociety. However, in order not to cause anyunnecessary confusion between this report and otherexisting literature, terms have been ascribed theirordinary meaning unless it was pressing that aworking definition be adopted.

7.1 Xenophobia

The Merriam-Webster Dictionary defines ‘xenophobia’as ‘fear and hatred of strangers or foreigners or ofanything that is strange or foreign’.40 Similarly,according to the South African Human RightsCommission, xenophobia is ‘the deep dislike of non-nationals by nationals of a recipient state. Itsmanifestation constitutes a violation of humanrights’.41 This general definition points to aperception but does not elaborate on the actualmanifestation of such fear or hatred of strangers. In

40 Merriam Webster Online Dictionary http://www.merriam-webster.com/dictionary/xenophobia.

41 South African Human Rights Commission’s BraamfonteinStatement on Racism and Xenophobia, 15 October 1998.

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the South African context, xenophobia is both anegative attitude towards foreigners and amanifestation in extreme cases of violent attacksagainst them. In this paper the term ‘xenophobia’ isused in the broadest possible way to includeperceptions, attitudes and manifestations. Such anencompassing definition, it is anticipated, will allowfor the formulation of wide-reaching recommen-dations as to government obligations to preventxenophobia.

Xenophobia is often referred to in conjunctionwith other terms such as ‘racial discrimination’, whichis defined by the Convention on the Elimination of allForms of Racial Discrimination as meaning ‘anydistinction, exclusion, restriction or preference basedon race, colour, descent, or national or ethnic originwhich has the purpose or effect of nullifying orimpairing the recognition, enjoyment or exercise, onan equal footing, of human rights and fundamentalfreedoms in the political, economic, social, cultural orany other field of public life’.42 The Convention doesnot, however, apply to distinctions made by statesbetween citizens and non-citizens, and similarly doesnot affect legal provisions that a state may enact inrelation to nationality, citizenship and naturalisation,provided these provisions do not discriminate againstany particular nationality.43

Although the two phenomena (xenophobia andracial discrimination) are distinct, they also overlap.Xenophobic attitudes may lead to discriminatoryactions against foreigners on the basis of theirnationality or ethnic origin and thus be linked to racialdiscrimination.44 While racism is a distinction basedon difference in physical characteristics, xenophobia

42 Art 1(1).43 Art 1(2) & (3).44 n 23 above.

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stems from a perception that the other is foreign to ororiginates from outside the community or nation.45

The perception of ‘foreign-ness’ may also be informedby physical characteristics that serve to identify the‘other’, such as an inability to speak the local language(well or at all), accents, style of dress, and vaccinationmarks.46 Because a distinction between the two isimportant in order to develop strategies that explicitlytarget xenophobia, this study will endeavour tomaintain this distinction to the extent possible.

South African’s intolerance towards foreigners isnot uniform, applying to all foreigners in the same wayand to the same extent.47 Nationals from countries inAfrica bear the brunt of harsher negative attitudes buteven within this category there are differences.48 Withthe exception of Zimbabweans, who entered SouthAfrica in masses, it is fairly noticeable that foreignnationals from SADC countries are generally morefavourably perceived than other Africans. It is not clearwhy this is the case though.

While most of the violent manifestations ofxenophobia have taken place on the horizontal planebetween individuals or groups of individuals,xenophobia is also perpetrated along the verticalplane within and by institutions of government.49 Anti-immigrant sentiments manifest themselves ininstitutions such the Department of Home Affairs andthe South African Police Services (SAPS), exacerbatinggeneral levels of xenophobia. Foreign nationalsencounter tremendous obstacles in their efforts toacquire legal status and identity documents at the

45 n 23 above.46 Harris (n 10 above).47 Crush (n 5 above) 4.48 See Sociological Research findings below.49 L B Landau ‘The Laws of (in) hospitability: Black Africans in South

Africa’ Forced Migration Working Paper Series No 7 (May 2004).

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Department of Home Affairs, including administrativeinefficiency and corruption.50 Due to the lack ofpapers, and sometimes despite having identity papersand legal status, foreign nationals are prone toharassment, mistreatment and extortion by lawenforcement agencies, sometimes resulting indeportation.

7.2 Legal obligations

By ‘legal obligations’ is meant duties that accrued toSouth Africa from the international legal regime of lawsome of which law has adopted a national frameworkupon being domesticated through legislation or anyother channels. These obligations are, therefore, apotpourri of principles and standards by virtue ofwhich South Africa should deal with foreign nationalswithin its territory, failing which an event (a breach ofinternational law) occurs. In such circumstances, acorollary obligation to compensate or otherwiseredress a breach of international law follows as a ruleof customary international law.51

7.3 Foreign nationals

‘Foreign nationals’ is a descriptive phrase, chosen forits less derogatory effect, used to refer to all nationalsof a state other than South Africa who are ordinarilyresident in South Africa under various immigrationpermits or without such permits. As already alluded to,the focus in this report is on a category of foreignnationals called international ‘migrants’. Migrantshave been loosely defined as people of another state

50 Human Rights Watch Living on the Margins: Inadequateprotection for refugees and asylum seekers in JohannesburgNovember 2005 Vol 17 No 15(A).

51 In the domain of protection of foreign nationals within theterritory of a state, usually principles dealing with the liability ofa state to aliens applies mutatis mutandis. A discussion on thisconcept shall follow when dealing with the first of the researchquestions.

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who have voluntarily or otherwise come to settletemporarily or permanently due to a number of pulland push factors such as war, persecution; economicopportunities abroad and so on. Voluntary migrantsusually take the form of migrant workers (those whomigrate in order to take up employment opportunitiesin South Africa) as opposed to those fleeingpersecution or natural disasters.

Involuntary migrants would be of much interest inthis study as they constitute a different category ofpeople who fell victim to the degrading events ofxenophobic violence. This category of migrantscontains the most vulnerable groups of peopleordinarily protected on temporary or permanent basisby the international refugee law regime.52 They arevulnerable because they find themselves in unfamiliarterritory without a claim to anything and left to thewhims and charity of hosts who might not be ascharitable as expected. This came out as a result of thexenophobic violence in South Africa.

7.4 Asylum seekers

The most prominent category of involuntary migrantsis ‘asylum seekers’. As the name suggests, asylumseekers are persons from another country who haveinvoluntarily left (in most cases fled) the country ofnationality because that country is unwilling or unable

52 The flagship sources of principles and standards onhumanitarian law are the UN 1951 Convention on the Status ofRefuges and its 1967 Protocol, the 1969 OAU ConventionGoverning Specific Aspects of Refugee Problems in Africa as wellas the Refugee Act 203 of 1998. The Refugee Act was principallyadopted in order to domesticate the principles and standardscontained in the above international treaties. This objective isvery clear in the Preamble and Short Title of the Refugee Actwhere the above two international conventions are singularlymentioned and provisions taken verbatim or paraphrased in thetext of the Refugee Act.

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to protect them from persecution on the basis of‘Convention grounds’.53 Convention grounds refer tothe list of factors on the basis of which one might fleea country of origin. These are contained in article 1 ofthe UN 1951 Convention as well as article of the OAUConvention. The UN 1951 Convention provides forthese factors as including ‘race, religion, andnationality, membership of particular social group orpolitical opinion’. In addition to the factors as theyappear in the UN 1951 Convention, the OAUConvention provides for ‘external aggression,occupation, foreign domination and events seriouslydisturbing public order’ in the whole or part of acountry.

The usual conditions necessitating flight includepolitical, religious, race, nationality, and affiliation to aparticular social group.54 However, article 1(2) of theOAU Convention expands the criteria used to vetrefugees to include ‘external aggression, foreigndomination, occupation and events seriously disturbpublic order’ in some parts or whole of a country. Thisexpansion was celebrated as a reaction to practicalproblems facing the developing world, henceassessing the plight of refugees on the basis of a ‘defacto’ rather than a ‘the formal, authority structurewithin the country of origin’.55

Loosely put, asylum seekers are in fact‘refugees’.56 In that context, a refugee denotes‘someone in flight, who seeks to escape conditions orpersonal circumstances found to be intolerable’.57

Because of these conditions, the person in flight will

53 Whilst the phrase ‘Convention grounds’ is not a term coined inthis work, but has been widely used to refer to the listedgrounds forming the basis of a ‘well-founded fear ofpersecution’ in article 1 of the 1951 UN Convention on theStatus of Refugees.

54 Articles 1 of the UN and OAU Conventions refer.55 JC Hathaway The Law of Refugee Status (1991) 17.56 Goodwin-Gill (n 39 above) 15.57 As above.

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be unable or unwilling to return to the country ofnationality. The destination of that person is notrelevant to warrant protection, but the perception thatsuch a person is ‘worthy’ and ‘ought’ to be ‘assisted’or protected from the conditions necessitating theflight calls for the need of intervention.58

Be that as it may, an asylum seeker is worthy oftemporary protection pending the determination of hisapplication for asylum whereupon he or she becomesa refugee where such application has been granted.59

In other words, the line is drawn between an asylumseeker and a refugee as a legal characterisation in thatthe later used to be the former until such a time as hisapplication for protection on the basis of ‘well-founded fear of persecution’ or any groundsrecognised by conventions and national law. It isunnecessary to get into the modalities of how suchapplications are processed since a full discussion anda drawn out debate will be devoted to this process tounearth loopholes and inadequacies in the process.

7.5 Refugees

So, what constitutes a refugee as a legalcharacterisation? Simply put, a refugee is an asylumseeker who has been formerly offered protection bythe host country. The recognition makes him or herentitled to a number of rights and privileges notordinarily extended to asylum seekers or any othercategory of involuntary migrants. These includeprotection, issuing of travel documents, and engagingin employment.60 Refugees stand a chance ofresettlement in a third country that offers such

58 As above.59 As above.60 In terms of the special conditions of the Temporary Asylum

Permits issued in SA, an asylum seeker awaiting the outcome ofan asylum application is allowed to work or study during thatwaiting period.

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opportunities especially in the developed world.61 Aspart of seeking long term solutions for the plight ofrefugees, re-integration programmes are alsoprovided. The objective of such programmes is toassimilate refugees into the hosting communities tosettle there permanently.

The granting of refugee status remains atemporary arrangement. Its continuation entirelydepends on the developments in the situation withinthe sending country. Refugees almost always entertainthe belief that one day they will be able to go backhome. This sentimental attachment to one’s place oforigin makes voluntary repatriation a desired optionoften backed-up with incentives such as free transportand packages designed to assist returnees to integrateand manage a new beginning in their formersocieties.62 In some cases, repatriation becomes anoption to the host country where refugee status hasexpired by virtue of the operation of the ‘cessationclause’ in most national refugee legislation. Thisfollows an agreement between the host authorities,UNHCR and the refugee that the conditions they fledfrom have ceased to exist and that the sending state iswilling and able to provide protection once again.

7.6 Migrant workers

‘Migrant workers’, a generic phrase, provides a uniquecategory of migrants in the sense that the reasons forleaving the country of nationality were nevercontemplated by the main sources of the refugee

61 However, a respectable number of resettlement programmeswere undertaken in Africa in countries such as Tanzania, Zambiaand Angola to name but a few, such that it would be very untrueto say that no resettlement ever took place in developing states.

62 Readers should consider the voluntary repatriation of Angolansback to Angola from all over the world especially parts ofSouthern Africa as a flagship programme of voluntaryrepatriation as a long term solution.

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protection regime.63 The Convention on the Protectionof All Migrant Workers and Members of TheirFamilies64 defines a ‘migrant worker’ in article 2(1) asany ‘person who is to be engaged, is engaged or hasbeen engaged in a remunerated activity in a State ofwhich he or she is not a national’.

These migrants may be temporary (short term) orpermanent (long term). The latter category usuallygets assimilated into the society having been grantedpermanent residence. This practice is alive in SouthAfrica as much as it is in the developed world wherethere is almost always shortage of professionals inservice provision. However, as long as they have notyet assumed the citizenship of the host country, theyare migrants. Although international instrumentsmake a distinction between legal and illegal migrantworkers,65 they both should be protected when itcomes to matters related to their employment. It is infact illegal immigrants whose rights stand a very highrisk of violation in the course of their employment andstay. Accordingly, this work covers both legal andillegal migrant workers to the extent that theinternational legal framework provides for theirprotection in certain circumstances or for the reasonthat despite their patent high risk to abuse, theexisting legal regime pays no more than a cursoryglance to their plight. The most moving reason is that

63 Ryszard Cholewinski interchanges ‘migrant worker’ with‘foreign worker’, ‘guest worker’ and ‘immigrant worker’ in RCholewinski, Migrant Workers in International Human RightsLaw: Their Protection in Countries of Employment (1997) 3.

64 Adopted by the General Assembly resolution 45/158 on 18December 1990 and entered into force on 1 July 2003. a copy isavailable at: http://209.85.229.132/search?q=cache:53IKI_UOj2AJ:www.unhchr.ch/html/menu3/b/m_mwctoc.htm+convention+on+migrant+workers&hl=en&ct=clnk&cd=1&gl=za (Accessed on 10 February 2009).

65 Cholewinski observes that the only exception among theinstruments is the UN International Convention on theProtection of the Rights of All Migrant Workers and Members oftheir Families.

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http://209.85.229.132/search?q=cache:53IKI_UOj2AJ:www.unhchr.ch/html/menu3/b/m_mwctoc.htm




both categories are victims of the xenophobicoutbursts.

7.7 ‘Economic refugees’

Economic refugees are those migrants that leavecountries of nationality to enter the territory of othercountries purely to take advantage of availableeconomic opportunities. A quick perusal of the legalregime relating to asylum seekers, IDPs and refugeesseems as if it does not contemplate this category ofmigrants as in need of protection by the refugee lawregime. Scholars have out rightly blamed states fordiscriminating against economic migrants as a way ofrestricting, as much as possible, the categories ofpersons over whom to assume responsibility in theirterritories.66 The prevailing literature generally holdsthat neither the UN 1951 Convention and its 1967Protocol, nor the OAU 1969 Convention with itsexpanded criteria, seems to encompass economicrefugees in its definition of a refugee eligible forprotection by these legal regimes. Goodwin-Hill andMacadam had this to say about economic refugees:

The solution to their problem, if any, lies more withinthe provinces of managed migration and ofinternational aid and development, rather than in theinstitution of asylum, considered as protection ofwhatever duration on the territory of another state.67

We are encouraged by the fact that despite thissomewhat pessimistic suggestion about dealing witheconomic refugees, the authors observed that thiscategory of persons has long been ‘disfavoured’ but isnow coming back into discussions thanks toglobalisation. Our approach in this work is tothoroughly seek the proper place of economicrefugees in international law, and possibly seek theirinclusion in the ‘institution’ of asylum, if they are notalready considered as such. This proposition is based

66 Goodwin-Hill (n 39 above) 15.67 As above.

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on the concept of ‘expanded criteria’ that has beensingularly noted in the OAU Convention and theCartagena Declaration on Refugees of the Organi-sation of American States (OAS).68 Thereafter,targeted recommendations would be made dependingon the nature assumed by the research outcome.

7.8 Internally displaced persons

‘Internally displaced persons’ (IDPs) form part of thewide category of forced migrants. It has beenvehemently argued that IDPs are nothing less thanrefugees or asylum seekers. The only difference isthat, first, there is no refugee or any other wellestablished legal framework that protects thiscategory to an extent similar to the way other migrantsenjoy protection. This has been noted as anunnecessary form of discrimination against IDPs.Second, the territoriality principle comes into play inthat the mere fact that IDPs by their nature almostalways remain in the territory of the country ofnationality or residence makes them a concern of thestate with effective control over that territory. To thatend, they are not expected to cross borders in pursuitof safety. Doing so changes their status to asylumseekers and accordingly subjects them to a morerigorous task of discharging the onus of ‘well-foundedfear of persecution’.

However, IDPs that form the subject matter of thisresearch have an interesting twist to the conventionalunderstanding of IDPs especially with reference to theterritoriality principle. This is so because the IDPs we

68 Annual Report of the Inter-American Commission on HumanRights 1984-85, OEA/Ser.L/II.66,doc, rev. 1, at 190. This wasadopted by the Assembly of the OAS in 1984.

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analyse in this work were initially not in thatcategory.69 Some of them were recognised refugees,some were asylum seekers awaiting the outcome oftheir applications from the Refugee Reception Centre(RRC), some were still to approach the RRC to initiatethe process; some were illegal immigrant workers;some were legal migrant workers and so on. Whatbound all these categories together during and afterthe xenophobic violence is that they ended up beingdisplaced from their communities and in need ofprotection. Some of the questions we shall answer are:What regime would be appropriately suited to addressthe respective needs of these different groups giventheir different migrantry status? To what extent doestheir migrant status before the violence inform theprotection regime to be invoked in the circumstances,or should they be simply treated as IDPs?

7.9 Illegal immigrants

‘Illegal immigrants’ is a category of persons to whichmost foreign nationals belong until their immigrantstatus is regularised on arrival in the host state. Forexample: Any person who enters the territory ofanother state without permission from theimmigration authorities demonstrable by way of a visaor immigration permit is an illegal immigrant. It thenfollows that the reason for fleeing the country ofnationality is immaterial at this point. As a temporary

69 In a separate but sufficiently relevant project, on 7 March 2009the Centre for Human Rights participated in the taking ofstatements from Somali refugees and asylum seekers who were displaced during the xenophobic violence from different parts ofSouth Africa. This group of people is now temporarilyaccommodated in Randfontein. It came out very clearly from thestatements (copies of which are in the possession of theauthors) that some of them were fairly integrating in almost allthe provinces of South Africa, but mainly Eastern Cape, Gauteng,Mpumalanga, North West, and Limpopo. They were however,displaced and got temporarily sheltered at Akasia camp until the3rd of March 2009 when the shelter was officially closed leavingthe people without shelter and displaced again.

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characterisation, an illegal immigrant enters theterritory of another state whereupon he or shedeclares the reason for such actions. If the reason is toseek asylum, his status changes as soon as he or shelodges an application for asylum. This is even more sowhen he or she ultimately becomes a recognisedrefugee.

We conclude, therefore, that one’s immigrationstatus devolves around his position vis-à-vis theimmigration laws of the host state. Economic refugeesmay well have proper immigration papers to visit. Theyremain legal immigrants until they assumeemployment. Then they render themselves illegal inthe sense that they have no such permits as to allowthem to engage in employment in the host state. Thesituation of migrant workers who do not possessproper work or other permits allowing them to take upemployment is similar.

The most frequently encountered category ofillegal immigrants is that of people who entered SouthAfrica without travelling documents, remained in theterritory without seeking asylum or any other status,or who intended to seek asylum but for some reasonhave not yet done so. They sometimes furthercomplicate their status by taking up employment inorder to survive. These people stand a good chance ofdeportation without further inquiry. However, thecircumstances of temporary illegality illustrated abovewill be further explored in this work in order toestablish who really falls into the category of illegalimmigrants and reasons behind it.

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8 Sociological research findings

The findings of the in-depth interviews are groupedinto two categories, responses from South Africanrespondents and those from non-South Africanrespondents.

8.1 South African respondents

From the South African respondents, eight themeswere identified as below:

(a) A marked increase in the numbers of non-South African nationals into the country in recent years

The research confirmed the generality of theperception that a large number of non-South Africannationals have entered the country in recent years.Although the respondents acknowledge that non-South Africans have always lived in their communities,they also acknowledged that the high influx of non-nationals, especially from Zimbabwe, has contributedto the frustrations of locals.

(b) Lack of service delivery

South African respondents feel that the governmenthas not fulfilled its promise to provide for the basicsocio-economic needs of the poorer segment of SouthAfrican society. Such socio-economic needs includehousing, access to healthcare, access to education andjobs. South African respondents feel that it angerslocals when they see non-nationals with access to theaforementioned services, while locals remainunassisted.

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(c) A general reliance on the government to provide for the poorer segment of the population

It is evident that most of the South Africanrespondents are frustrated at the government’s lack ofservice delivery. Most South African respondentsexpressed the sentiment that the government is notdoing anything to help them. From this, it can beobserved that most local respondents rely on theSouth African government to cater for their most vitalneeds.

(d) A general sentiment that the government should tighten border controls

Most South African respondents mentioned that theydo not mind non-nationals who are in the countrylegally. However, they expressed frustration at thehigh numbers of non-nationals living in theircommunities illegally. In light of this, they mentionedthe need for the government to tighten bordercontrols.

South African national from Mamelodi Township:

In my township, there is an area called Lusaka,where there are many shacks. In the same area,many foreigners have RDP houses. A foreignerapplies and after two years he gets an RDP whilemany South Africans are still waiting. This provokesthe anger of many people.

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(e) A general sentiment that the South African government should encourage other African governments to cater for the needs of their populations

The general sentiment of South African respondentswas that non-nationals enter the country because ofpolitical or military conflict in their own countries.While some respondents acknowledged that somenon-nationals enter South Africa legally to work orstudy, the general sentiment was that non-nationalsenter South Africa for the purposes of escapingconflict zones and improving their condition of life. Inlight of this, the majority of respondents held thesentiment that the South African government shouldassist in solving the problems of other countries(especially Zimbabwe) and encourage other Africangovernments to cater for the needs of their people.

South African from Mamelodi:

Those who could are not in a position to help - thegovernment is failing in its duty. The governmentmust implement a system of border control andmake sure there is no bribery or corruption in termsof service delivery.

South African from Limpopo province:

The government must communicate with their homecountries and encourage the provision of basics intheir own countries. They must make some form ofagreement to help these people.

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(f) Access to socio-economic rights for non-nationals

When South African respondents were asked whethernon-nationals should be allowed to work, and accessthe socio-economic benefits afforded by thegovernment such as RDP (Reconstruction andDevelopment Program) houses and governmentgrants, the respondents expressed mixed sentiments.Some respondents were of the view that non-nationalsshould be allowed to access governmental grants, RDPhouses and anti-retroviral medication as long as theyare legally in the country.

These are examples of different opinions that wereexpressed:

A respondent from Ga-Rankuwa:

They must get rid of Mugabe that is why all thesepeople are coming to South Africa

Moses*, a South African student:

Some foreigners pay taxes, and they are humanbeings, so they are entitled to it. They should beallowed these things as long as they are here legally.

Marx*, a resident of Mamelodi Township:

Foreigners should not be allowed to own RDP houses,and should not be allowed to access governmentsocial grants. No, people from South Africa arestruggling to access these things. If the governmentis financially stable, they should support SouthAfrican citizens first.

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(g) Reintegration

Among South African respondents, there were mixedperceptions with regard to re-integration. Somerespondents were of the opinion that the xenophobicviolence was wrong and that non-nationals should beinvited back into the community, while others held theview that it was too dangerous for non-nationals toreturn.

(h) Repatriation

South African respondents expressed mixed viewswith regards to repatriation of non-nationals. Somerespondents said that illegal immigrants should besent back to their countries and solve their ownnational problems, while other respondents expressedthe view that many non-nationals come from countriesthat are experiencing crises of various kinds, andtherefore they should be allowed to stay.

8.2 Non-South African respondents

From the interviews with non-South African-nationals,seven prevalent themes were identified:

(i) Lack of education

The overwhelming majority of non-South Africanrespondents find South African nationals to bexenophobic. In the general opinion of non-nationals,this xenophobic tendency can be attributed to thegovernment’s poor education of its people, especially

A man from Soshanguve:

It is not safe in my area. Foreigners are treated badlybecause of their colour and things that they do, likecrime- they do crime using magic and can stealinvisibly- so people are very still angry about that.

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on the subject of the history of the country, and a lackof information about the assistance that South Africareceived from other African countries duringapartheid. Furthermore, non-national respondents areof the opinion that South African nationals need toimprove their skills and abilities to employthemselves.

(ii) Political agenda

The majority of non-nationals who were displaced bythe 2008 xenophobic violence are of the opinion thatthe recent attacks on non-nationals were inspired by apolitical agenda, and that the African NationalCongress (ANC) mobilised people to perform theseattacks.

Central African citizen on what government can do tocurb xenophobia:

It’s going to be a long journey because in the SouthAfrican blood it is boiling. They should have startedeven just after freedom to try teach people, to teachthem love, not only to love a South African, but tolove any human being. Remembering that man wascreated in God’s image. And what is eating at mybrain is that the one called the kwerekwere is theblack African. Not the white foreigner.

A non-national on the causes of xenophobicviolence:

I think there is some other hidden agenda. I thinkthere is even some Political reasons also. Because Iremember some people just after the Polokwaneconference people returning from the conferencewere telling us that you’ve got 17 months to get outof this country. Everyone we passed by was sayingyou’ve got 17 months to get out of the country.

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(iii) Inefficiency of the Department of Home Affairs

Most of the non-South African nationals who had thestatus of asylum-seekers expressed frustration at theDepartment of Home Affairs, saying that thegovernment department had not concluded within areasonable period whether or not they qualified forrefugee status. Some respondents expressed that theyhad visited the Department of Home Affairs monthlyfor over five years, but they still are considered to beasylum-seekers.

(iv) Poor policing

Almost all of the non-South African respondentsexpressed the opinion that the South African policeare corrupt and extremely xenophobic. Therespondents generally described the police as rude,aggressive, corrupt and unhelpful to ‘foreigners’. Mostof the respondents displaced by the 2008 xenophobicviolence mentioned that the police did not come totheir assistance during the time of the violence.

(v) Repatriation

In light of the 2008 xenophobic violence, some of thenon-South African respondents mentioned that theywant to return to their own countries in the nearfuture. However, others (especially respondents fromRwanda, Burundi, Zimbabwe and Somalia) mentionedthat they would rather endure the hardships of SouthAfrica than return to the turmoil in their own countries,or be repatriated to a safer country.

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When the researcher tried to track down some of thenon-nationals who had been displaced by thexenophobic violence, after the government offered torepatriate non-nationals who wanted to return to theircountries, it was discovered that a large number ofZimbabweans, Somalis and Congolese had refused toreturn home, saying that conditions were worse intheir own countries. Instead, they opted to accept theUNHCR cash donations and the temporary permits.

(vi) Re-integration

None of the respondents who had been displaced bythe 2008 xenophobic violence were willing to be re-integrated into the communities from which they weredisplaced. Instead, they were all in favour ofcompensation for their losses and relocation to a safercountry. When asked about repatriation, a CentralAfrican man, Jason*, who had been living inMpumalanga for nine years until he was displaced bythe xenophobic violence, remarked as follows:

Female non-national:

I can’t go back to my country. The South Africangovernment and people have shown that they don’twant foreigners. They should take us to where wewill be respected as human beings. I came here forsafety, and found no safety.

Has that community changed? That’s my firstquestion. That hatred, does it not exist? Is it finished?No, it’s still there. I told you. The hatred has takenroot in the South African blood. They’re trying to tellme to go back to that community. I’m not ready.

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Most of the displaced non-nationals who did not returnto their countries are still staying in the refugeecamps, having refused to accept re-integration.

(vii) Access to socio-economic rights for non-nationals

All non-nationals are of the view that they should beallowed to work in South Africa. When asked whetheror not non-nationals should be allowed to work inSouth Africa, one European respondent said:

A West African non-national, when asked the samequestion said:

When respondents were asked whether or not non-nationals should be allowed to access socio-economicbenefits from the South African government, all non-nationals professed the view that they should haveaccess to these benefits, but only after the needs ofSouth African citizens have been met. One non-national respondent from Central Africa expressed thefollowing view:

Yes, because they do it anyway, and because ofhistorical accident: the borders have been artificiallydrawn.

Of course! Where my husband works, there arethirty-eight vacancies for doctors, and only fourdoctors work there - there is a shortage of skills.

If I come to visit at your home, I am not expecting mychildren to get the same treatment as your children,though my children, as human beings, should beable to get some small things like food and hospital.

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9 What are South Africa’s legal obligations, if any, regarding xenophobic violence against foreign nationals?

It must be pointed out from the outset that despite themagnitude of the problem of xenophobia, and unlikethe closely related phenomenon of racism, there areno binding instruments at the international level thatexplicitly address the prohibition of xenophobia.Recourse is therefore had to existing treaties, creatinga patchwork of provisions that may be relevant. Theseprovisions will be examined at two levels, the first at ageneral level of provisions applicable to the rights ofindividuals generally, and, in the second instance,provisions that relate to individuals who fall into thecategory of foreign nationals in this study. Beforegetting into the analysis of legal obligations, it ispertinent to discuss briefly the law relating totreatment of foreign nationals resident in states otherthan their own. This discussion will set the tone, scopeand context of the analysis into South Africa’s legalobligations with respect to xenophobic violence.

9.1 The general responsibility of states over foreign nationals

The responsibility of states over foreign nationals is aprinciple of public international law closely related tothe law on diplomatic protection. It then follows that itis no new concept brought into discourse by moderninternational law. As a brief recap, the law ondiplomatic protection, a rule of customaryinternational law, was developed at a time whenindividuals were unknown to be bearers of rights ininternational law. Only states were duty and rightbearers, exclusively enjoying the right to invokeproceedings against other states for breach of generalinternational or treaty law, including violation of rightsof nationals (protracted detention or expropriation

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without compensation) of the complainant stateresident in a foreign state.70 Violation by a state ofrights of individuals of another state would lead to‘indirect state responsibility’ in the sense that sinceindividuals were not subjects of international law,states owed duties amongst themselves.71

Consequently, a state would vindicate its nationalsrights ‘on their behalf’ through a claim for reparationspaid to the complainant state and not to the injuredindividuals.72

Standard of treatment

Whereas the principle that states have responsibilityover foreign nationals resident in their territories isbarely controversial, the standard of treatment offoreign nationals by host states sparked a debateleading to the conceptualisation of two theories,namely, the ‘international minimum standard’ and the‘national treatment’. Vehemently supported by thefamed Argentinean jurist Calvo, the ‘national treat-ment’ theory provides that states ought to treatforeign nationals in the same way they do their own

70 The violation of rights such as property rights of foreignnationals resident in another state by the host state amountedto violation of international law by the host state against thesending state. It was never interpreted as violation of rights in away akin to one introduced by the human rights movementwhere individuals now claim reparations in their stead.

71 Dugard (n 37 above).72 In the Mavrommatis Palestine Concession Case, the Permanent

International Court of Justice (PICJ) held that ‘by taking up a caseof one of its subjects and resorting to diplomatic action orinternational judicial proceedings on his behalf, a State is inreality asserting its own rights-its right to ensure in the personof its subjects respect of rules of international law’. Cited byDugard (n 37 above) 282.

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nationals.73 On the other hand, the ‘internationalminimum standard’ approach hypothesized that ‘thereare fundamental international standards of justice bywhich municipal law is to be measured’.74 Putdifferently, the notion is that there exist certaininternational standards of treatment of foreignnationals to which all states should conform.

The constitutive elements of this approach areboth substantive and procedural. As Borchardpostulated in 1940,75 the substantive dimension of itcomprises the recognition of ‘certain elementaryprivileges of human existence’ such as right to life andother rights connected with the ‘earning of a living’.76

As to the procedural, due process should always beguaranteed when dealing with foreign nationals. Thisanalysis clearly shows that the international minimumstandard carries with it a human rights flavour. Therehas also been a scholarly suggestion that theinternational minimum standard approach has alreadyacquired customary international law status by virtueof its inclusion in commercial contracts, treaties,navigation treaties and judicial decisions.77 Bothapproaches received strong criticism.

The major shortcoming of the national treatmenttheory was the undesirability of having variablestandards forming the basis on which foreignnationals should be treated in different countries,78

73 This doctrine was widely accepted to the extent that it wasadopted by the First International Conference of American Statesin Washington in 1899-1900. it was also drafted into article 9 ofthe Convention on Rights and Duties of States, SeventhConference in Montevideo in 1933. As cited by Cholewinski (n63 above) 43.

74 Cholewinski (n 63 above) 44. 75 Borchard (n 38 above).76 As above.77 As above.78 See R B Lillich, International Law of State Responsibility for

Injuries to Aliens (1983) 17, as cited by Cholewinski (n 63 above)43.

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especially with the increase in totalitarian andtyrannical regimes in world politics. It was, therefore,desirable to have a minimum standard of aninternational nature so as to derive legitimacy fromconsensus upon which compliance with internationallaw is generally based.

Despite Borchard’s attempt to dissect and analysewhat lies at the core of the international minimumstandard approach, critics persisted that the mainweakness of this approach is the inability to draw itsparameters. However, for purposes of this research,Borchard’s approach to the international minimumstandard is sufficiently informative making it possibleto compare the two approaches.

With regards to state practice in relation to the twoapproaches, Dugard observed that for reasonsvirtually unknown, states have naturally fallen into twodivides, with the developing world supporting theequal treatment approach, while the developed worldassociated with the international minimum standardapproval.79 All in all, when comparing the twoapproaches back-to-back, the ‘minimum standardoffers aliens the possibility of an objective and

79 Dugard (n 37 above) 297. Our assessment of the debatestrongly suggests that the reason could be economic andpolitical as much as they could be anything else. If Borchard’sapproach is to be taken, the minimum standard approach isclosely linked to the respect for human rights and more so, fairtrial guarantees associated with procedural remedies to humanrights protection. Running the risk of generalizing, developingstates have always been found wanting when it comes toestablishment of working institutions to consolidate democracy;hence they would rather support the equal treatment approachwhich gives them deference to apply any existing standards atnational level. Developed states on the other hand have alwaystaken the lead in providing protection of fundamental rights atdomestic level, have pioneered regional human rights protectionhence they are comfortable with associating themselves with astandard of treatment of aliens of an international character.

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guaranteed level of protection potentially superior tothat afforded by inadequate national laws’.80

9.2 International human rights norms and responsibility over foreign nationals

The advent of the human rights movement after WorldWar II did not only threaten the legitimacy of the abovetheories, but shook the foundations upon which theyare established to the extent of making the debate‘defunct’.81 This state of affairs was acknowledged asearly as the 1950s when the United Nations SpecialRapporteur to the International Law Commission onState Responsibility observed as follows:82

The conflict and antagonism formerly existing betweenthe ‘international standard’ and the principle of equalityof nationals and aliens have become obsolete inconsequence of the political and juridical phenomenonin the post war world of the recognition of fundamentalhuman rights, and hence it would be useless to continueto hope that either the ‘international standard’ or theprinciple of equality will prevail.

The new understanding of the relationship betweennationals and foreign nationals was that the lattershould enjoy similar civil rights and guarantees asnationals as long as this protection did not fall belowthe human rights standard. Cholewinski in fact furthersuggests that despite the relativity of the internationalminimum standard to fundamental rights, the humanrights protection regime has elevated the standards ofprotection of both nationals and foreign nationals toan extent that the international minimum standard canno longer stand as a ‘yardstick by which abuses are to

80 Lillich (n 78 above).81 Cholewinski (n 63 above) 46.82 G Amador, ‘Third Report’ in Yearbook of International Law

Commission, 1958, Vol. II, UN Doc. A/CN.4/111, para 8 cited byCholewinski (n 63 above) 46.

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be measured’.83 In fact human rights norms now serveas the ultimate standard in determining theobligations of states for protection foreign nationals inits territory. This proposition is bolstered by anobservation that ‘principal universal and regionalinternational human rights instruments protect therights and freedoms of aliens as well as nationals’.84

These instruments include the global (UN), andregional human rights systems (the European, Inter-American and the African human rights systems).

Having traced the development of the keyprinciples of the law on responsibility over foreignnationals, it is now proper to analyse how South Africafits in the puzzle as informed by its constitutionalframework. The analysis above paves the way for aninformed examination of any existing obligations ofSouth Africa regarding the treatment of foreignnationals in the context of the xenophobic violence. Inthe above scrutiny of the law on treatment of foreignnationals, it has come out clearly that such analysiscan only be carried out successfully in the context ofthe human rights norms dictating the standardexpected of states in this regard. It has also come outprominently that the reason why foreign nationals findthemselves in the territory of a states other than thestate of nationality is not relevant to the discussion.

Therefore, even though refugee law is theappropriate legal category to deal with the protectionof certain categories of migrants, the influence of thehuman rights movement is difficult to ignore. We willhasten to suggest that if international human rights

83 As above. The author cautions against discarding the traditionalapproaches to diplomatic protection on the basis that thehuman rights movement, despite its undisputed efforts torevolutionize protection of aliens, has not really sucked in somepowerful states such as the US, which is not part of many ainternational human rights protection mechanisms. The practiceof such powerful states almost always dictates the pace at whichinternational law develops.

84 Cholewinski (n 63 above) 47.

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norms could shake the well established foundations ofthe law on diplomatic protection, there is no reasonprecluding the same norms to inform the wayinternational refugee law is applied especially amidstallegations that international refugee law remains oneof the most ‘least developed’ areas of internationallaw. On this strength, we will analyse South Africa’slegal obligations for the protection of migrant foreignnationals who fell victims to xenophobic violence intandem with the international human rights standardsas prescribed under the global (United Nations),regional (African Union), sub-regional (SADC) andnational human rights and refugee law frameworks.

9.3 South Africa’s general obligations over foreign nationals

9.3.1 The United Nations framework

Within the global arena, South Africa has ratifiedseveral instruments that provide protection againstdiscrimination and the violent manifestations thathave characterised expressions of xenophobia in therecent past. Any response to xenophobia must beunderstood from the perspective that regardless oftheir status, foreign nationals can never be deniedfundamental human rights.85 These fundamentalrights are enshrined in the Universal Declaration ofHuman Rights (UDHR) and the two InternationalCovenants on Civil and Political Rights (ICCPR) and onEconomic, Social and Cultural Rights (ICESCR). SouthAfrica has not ratified the latter Covenant, but hassigned it, demonstrating an intention to abide by theprinciples enshrined therein.86 In any case, theConstitution of South Africa assures socio-economic

85 ILO IOM OHCHR (n 23 above) 20.86 Vienna Convention on the Law of Treaties art 18.

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rights to ‘everyone’ in the Bill of Rights, drawing nodistinctions between categories of individuals.87

Consistent with the international human rightsnorms as the standard for the treatment of foreignnationals, some of the fundamental rights that foreignnationals are entitled to at the very minimum are therights to life,88 liberty and security of the person,89

freedom from torture,90 the prohibition of arbitraryarrest or detention,91 fair trial rights,92 freedom ofmovement and residence and exit,93 right toasylum,94 freedoms of thought, conscience, andreligion,95 opinion and expression,96 assembly97 andassociation.98 Unlike the right to vote or the right toparticipate in the government of one’s country whichare predicated on nationality or citizenship, theforegoing rights accrue to ‘everyone’. The obligationsengendered by these rights are particularly importantgiven the xenophobia in the context of South Africathat manifests as more than an attitude or perception.The social research that was carried out concurrentlywith the legal analysis confirmed the findings of otherresearch projects by other organisations, whichconcluded that many South Africans are not keen toextend basic rights to foreign nationals andparticularly not to undocumented migrants.99 Thevulnerability of foreign nationals is multiplied whenthese views are held by law enforcement officials orother state officials charged with the responsibility of

87 See issue (d) below.88 UDHR art 3; ICCPR art 6.89 UDHR art 3; ICCPR art 9.90 UDHR art 5; ICCPR art 7.91 UDHR art 9; ICCPR art 9.92 UDHR art 10; ICCPR art 14.93 UDHR art 13; ICCPR art 12.94 UDHR art 14.95 UDHR art 18; ICCPR art 18.96 UDHR art 19; ICCPR art 19.97 UDHR art 20; ICCPR art 21.98 UDHR art 20; ICCPR art 22.99 Crush (n 5 above) 27-28.

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respecting and protecting the rights of foreignnationals.100

Article 13 of the ICCPR protects the rights of‘aliens’ in situations where they are to be removedfrom a state. The article protects only those foreignnationals lawfully within the state by providing somedue process guarantees. This provision does notsanction collective or mass expulsions from a state, aseach case requires to be processed on its ownmerit.101

In order to give effect to the rights in the ICCPR,states are required to adopt legislative, judicial,administrative, educative and other appropriatemeasures.102 Though the obligations engendered byinternational instruments are binding on states and donot have horizontal effect, the state has the obligationto protect individuals against acts by other individualsor private entities that infringe on their rights. Statesmay thus violate Covenant rights by ‘permitting orfailing to take appropriate measures or to exercise duediligence to prevent, punish, investigate or redress theharm caused by such acts by private persons orentities’.103

Discrimination on the basis of nationality or socialor ethnic origin is prohibited in both the instrumentsthat set out the general fundamental rights of theindividual,104 but also in specialised instruments suchas the Convention on the Elimination of all forms ofRacial Discrimination (CERD),105 Convention on the

100 Respondents to questionnaires during interviews with non-SouthAfricans held in and around Pretoria reinforced the allegationthat xenophobic perceptions thrive significantly in amongstmembers of law enforcement agencies in South Africa,especially the South Africa Police Service (SAPS).

101 Human Rights Committee General Comment No 15 paras 9 &10.102 Human Rights Committee General Comment No 31 para 7.103 Human Rights Committee General Comment para 8.104 UDHR art 2; ICCPR art 2.105 CERD art 5.

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Rights of the Child (CRC),106 and the Convention onthe Elimination of All Forms of Discrimination AgainstWomen (CEDAW).107 Similarly in the field ofemployment, the ILO’s Convention 111 concerningDiscrimination in respect of Employment andOccupation prohibits discrimination based on nationalextraction or social origin.108 Having ratified theseinstruments, South Africa is obliged to take allappropriate measures to ensure that there is equalityof treatment for all individuals irrespective of theirnationality.

The World Conference Against Racism, RacialDiscrimination, Xenophobia and Related Intolerance(WCAR) held in 2001 in Durban, South Africa,developed a programme of action in which states areurged to combat manifestations of generalisedrejection of migrants including xenophobia.109 Thegeneral applicability of human rights instrumentsregardless of the status of the migrant is reiterated.110

Further, states are urged to take legislative,administrative and educative measures in relation toimmigration, employment and a host of other areas inwhich migrants are likely to experience discrimination,racism and xenophobia.111 The Durban ReviewConference, a follow-up to the WCAR was held on 20-24 April 2009 in Geneva, Switzerland. The ReviewConference assessed the progress that has been madesince the WCAR and encouraged more action towardsthe fulfilment of the goals set in 2001.112

106 CRC art 2.107 CEDAW art 1.108 ILO C 111 arts 1 & 2. 109 UN World Conference on Racism, Racial Discrimination,

Xenophobia and Related Intolerance Programme of Action(2001) para 24 available http://www.unhchr.ch/pdf/Durban.pdf (accessed 3 October 2008).

110 As above.111 As above.112 See Durban Review Conference website http://www.un.org/

durbanreview2009/index.shtml (accessed 25 February 2009).

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The Convention on the Protection of the Rights ofAll Migrant Workers and Members of their Families(CMW) recognises the susceptibility of migrantworkers and their families to discrimination anddeprivation of fundamental rights.113 The protection itoffers is particularly relevant to the present situationwhere migrant workers bear the brunt of xenophobicattitudes. States are obliged to respect and ensure therights of all migrant workers and their families withoutdiscrimination. The state is required to ensure migrantworkers rights including the right to equal protectionof the law, to liberty and security of person, dignity,access to justice and due process, emergency medicaltreatment, access to basic education, protectionagainst unauthorised confiscation or destruction ofidentity documents, and protection against collectiveexpulsion. South Africa, which has not yet done so,should therefore ratify this instrument.

At the level of obligations owed specifically toforeign nationals, the CERD Committee has elaboratedon how it understands the Convention applying tonon-nationals.114 States are obliged to include withintheir state reports on legislation that affects non-nationals including its implementation.115 In addition,article 1 of the CERD which permits differentiationbetween citizens and non-citizens, it does not in any

way affect the rights of foreign nationals recognised inthe International Bill of Rights.116 As a generalprinciple, any measures that differentiate on the basisof nationality should in the light of the objectives andpurposes of the Convention be applied pursuant to alegitimate aim and proportional to achieving such anaim in order not to be considered discriminatory.117

113 CMW art 7.114 CERD Committee General Recommendation Nos 11 & 30. 115 CERD Committee General Recommendation No 11 para 2; no 30

para 5.116 CERD Committee General Recommendation No 30 paras 1 & 2.117 (n 116 above) para 4.

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Immigration policies should not be discriminatory ineffect against persons on the basis of nationality orethnic origin.118

States are encouraged to address xenophobicattitudes and behaviour towards non-nationals, inparticular hate speech and racial violence and to take

resolute action to counter any tendency to target,stigmatize, stereotype or profile on the basis of race, …national or ethnic origin, members of ‘non-citizen’population groups, especially by politicians, officials,educators and the media, on the internet and otherelectronic communications networks and in society atlarge.119

The right to equal protection under the law andrecognition before the law enables victims gain accessto redress mechanisms against perpetrators ofxenophobic violence and obliges states to take actionagainst these perpetrators, and victims require justand adequate reparation for any damage suffered as aresult of such violence.120

The prevalence of xenophobia evoked concern bythe CERD Committee in its concluding observations toSouth Africa’s state report in October 2006. TheCommittee as a result recommended inter alia thatSouth Africa

… strengthen its existing measures to prevent andcombat xenophobia and prejudices which lead to racialdiscrimination, and provide information on themeasures adopted with regard to promoting tolerance,in particular in the field of education and throughawareness-raising campaigns, including in themedia.121

The CERD Committee also noted with concern thesubstantial back-log that exists in the determination ofasylum applications, and the ill-treatment, including

118 (n 116 above) para 9.119 (n 116 above) paras 11 & 12.120 (n 116 above) paras 18.121 CERD Committee Concluding Observations South Africa CERD/

C/ZAF/CO/3 19 October 2006 para 27.

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extortion of documented and undocumented foreignnationals and the lack of investigation of these cases.The Committee recommended that South Africahasten the application processing to reduce the back-log and also take appropriate measures to eradicate allforms of ill-treatment, including investigation,prosecution and punishment of offenders; provision ofinformation to non-citizens about their rights andavenues of redress; education and training of lawenforcement officials on human rights generally andCovenant provisions.122

The Convention against Torture (CAT) prohibitsthe deportation or other expulsion, refoulement orextradition of individuals to countries where there issubstantial grounds for believing that such individualswould be in danger of being subjected to torture.123

The definition of torture under the CAT is very specificand thus may only apply to a small category of foreignnationals within South Africa, since the vast numbersof foreign nationals enter the country in search ofbetter economic opportunities.

The Convention Relating to the Status of Refugeesprovides for the rights and duties of refugeesidentifies several rights and benefits that are ofparticular importance to refugees such as non-discrimination, freedom of religion, right ofassociation, access to courts, right to engage inemployment amongst others.

9.3.2 South Africa’s obligations under the African Union regime

The AU legal framework provides for bothinternational human rights and humanitarian normsthat are of relevance to the current discussionalthough they do not expressly address thephenomenon of xenophobia. During its 43rd Session

122 (n 121 above) paras 21 & 23.123 CAT art 3.

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in Ezulwini in, Swaziland, the African Commission onHuman and Peoples’ Rights (African Commission)adopted a Resolution on the Situation of Migrants inSouth Africa.124 Although it does not mention anyspecific obligations related to xenophobia, theResolution makes a case that the human rights ofmigrants are ‘covered under general regional andinternational human rights instruments, unless theyqualify for protection under national, regional andinternational refugee laws and instruments’.125 Theremedial action urged in the Resolution was to‘investigate and prosecute those responsible for theattacks, and to institute further measures to ensurethe protection of foreign migrants in South Africa, andtheir property’. It is, therefore, clear that the discourseon obligations of states over xenophobia hinges onthe human rights allegedly infringed as opposed tosuggesting the existence of specific rights.

As to African regional human rights norms, theAfrican Charter on Human and Peoples’ Rights (AfricanCharter) stands out as the standard setting instrumentfor the protection of human rights on the continent.On the other hand, the OAU Convention GoverningSpecific Aspects of Refugee Problems in Africa (OAURefugee Convention) spearheads the campaign for theprotection of persons that cross national boundarieson the basis of well-founded fear of persecution on thegrounds specified in article 1 of the OAU RefugeeConvention.

What does it mean to say South Africa’sobligations regarding the hate of foreign nationals andanything foreign as manifested through violence,perceptions and attitudes? We have already, in thedefinitional segment of this work, indicated that thefocus of this work is on categories of migrants whichinclude asylum seekers, refugees and undocumented

124 Resolution ACHPR/Res.131 (XXXXIII). Available at:www.achpr.org.

125 Para 3 of the Resolution.

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migrants. As already stated above, the UN Declarationon the Human Rights of Individuals Who Are NotNationals of the Country in Which They Live, adoptedby the General Assembly in 1985, provides a widerange of rights and freedoms extended to foreignnationals.126 However, as it should, the debate onwhether all the rights and freedoms contained thereinconstitute the standard of treatment is still raging.127

A proposal that only those rights and liberties thathave acquired customary international law status inthe UDHR are part of the standard of treatment seemsto have attracted scholarly support.128 These rightsand liberties include non discrimination on thegrounds of race, right to a fair trial,129 freedom fromtorture, inhumane and degrading treatment.

At the basic minimum level, South Africa isrequired by its own Constitution130 and the AfricanCharter to protect rights and freedoms (civil andpolitical) such as the right to life, human dignity(integrity) which knows ‘no nationality’ but is ‘inherentin all people-citizens and not (sic) citizens alike-simply

126 The majority of these rights are, however, civil and politicalrights with little reference to socio-economic rights directlyrelated to the survival of a human being such as food, shelter,work etc.

127 Dugard (n 37 above) 298.128 As above.129 Besides the usual judicial guarantees, with reference to foreign

nationals the right anticipates consular visits before trial (seethe Chevreau Claim (France v UK) (1931) 2 RIAA 1113, 1123cited by Dugard (n above). For the codification of the rule seearticle 36(1) of the Vienna Convention on Consular Relations of1963.

130 Although it does not have extra-territorial application, the SouthAfrican Constitution (1996) applies to all persons residing withinSouth Africa including foreign nationals unless the exclusion ofa category of persons is expressly provided. This isdemonstrated by the use of phrase such as ‘No one’, ‘Everyone’etc. Cholewinski suggested that these are the indicators ofuniversal application and inclusion for protection of foreignnationals in principal universal and regional human rightsinstruments such as the UDHR, ICCPR etc.

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because they are human’,131 non-discrimination onthe basis of race, social origin, ethnicity and analogousgrounds,132 freedom of expression,133 right to a fairtrial with all its guarantees,134 right to property.135

Foreign nationals are also expected to have access tosocio-economic rights such as education, health andsocial amenities.

As to the refugee legal framework, although theAfrican Commission indicated that migrants aresheltered under the human rights framework unlessthey qualify for protection under refugee law, there isnothing to suggest that refugee law provides for anyother possibility of protection other than the oneoffered by the human rights framework. The 1969Convention is the first port of call when studyingaspects of movement and protection of migrants inAfrica. South Africa ratified the 1969 Convention on15 December 1995.136

9.3.3 South Africa’s obligations under SADC

The Southern African Development Community(SADC), though promising to be a force to reckon within dealing with human rights issues, the texts adoptedunder its auspices do not speak much in relation to theprotection of migrants in SADC member states.

131 Per Nugent JA in Minister of Home Affairs v Watchenuka 2004(4) SA 326 (SCA) 339 para 25. Article 4 of the African Charter

132 See article 2 of the African Charter. The concept of analogousgrounds in constitutional law was developed in accordance withthe presumption in law that the legislature cannot contemplateevery situation to which law should apply in future. It providesfor the possibility of adding certain criteria to a statutory list onthe basis that the criterion that is sought to be included has thesame effect just like one or more of the criterion alreadyincluded in a statutory provision.

133 Article 9 of the African Charter.134 Article 7 of the African Charter.135 Article 14 of the African Charter.136 Ratification status available at: http://www.africa-union.org/

root/au/Documents/Treaties/List/Convention%20on%20Refugees.pdf.

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Reference to human rights instruments such as theAfrican Charter have been made in individual treatiessuch as the Charter on Fundamental Social Rights inSADC,137 wherein reference is only made to rights andfreedoms in the African Charter, the UDHR and ILOinstruments dealing mainly with the employer-employee relationship such as collective bargaining(freedom of association) and equality of pay andopportunities between men and women.

Another instrument that speaks to migration is theDraft Protocol on the Facilitation of Movement ofPersons.138 However, as its current title reveals, it isstill only a draft. It makes reference to the treatment ofrefugees and asylum seekers by use of existinginternational framework as provided by internationalrefugee law instruments.139 No new principles areenacted. It should be expected that in view of theunfolding of the xenophobic violence in South Africa,the final draft of this Protocol will certainly have someexpressions of policy on addressing xenophobia inSADC member states.

As a sub-regional political organisation, the Treatyof SADC140 in article 4(c) provides for ‘human rights,democracy, and the rule of law’ as one of theprinciples to drive the organisation. The Protocol onthe Tribunal and Rules of Procedure thereofestablishes the SADC Tribunal to preside over disputesarising from the texts adopted in the SADC.141 ThisTribunal has a hazy human rights jurisdiction which ithas interpreted to arise from articles 4 and 15 of theTreaty of SADC.142 It still remains unknown whether it

137 Available at: http://www.sadc.int/index/browse/page/171.138 Available at: http://www.sadc.int/index/browse/page/149.139 See article 28 of the Draft Protocol.140 Available at: http://www.sadc.int/index/browse/page/119#

article 4.141 SADC Tribunal Protocol available at:http://www.sadc.int/

tribunal/protocol.php.142 Mike Campbell (Pvt) Ltd & 78 Others v the Republic of Zimbabwe

Case no. SADC (T) 02/2007.

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has jurisdiction to deal with disputes betweenindividuals and states on refugee law.

9.3.4 South Africa’s obligations under the national framework

At the national level, South Africa possesses a richconstitutional jurisprudence on state obligations inrelation to citizens and foreign nationals within itsterritory. It is beyond dispute that the Constitution,unless expressly provided differently, accords com-prehensive rights and freedoms to ‘everyone’ in SouthAfrica contained in the Bill of Rights to be interpretedand applied consistently with international law.143 Thesynergy between the constitutional framework andrefugee law will inform the discussions to follow.

With regard to refugee law, South Africa attractedobligations and rights confirmed by domesticating,among other similar treaties, the 1969 Conventionwhen it adopted the Refugees Act 130 of 1998(Refugees Act). Confirming that the Refugees Act wasadopted to domesticate international treaties, thePreamble to the Refugees Act provides as follows:144

Whereas the Republic of South Africa has acceded to the1951 Convention Relating to Status of Refugees, the1967 Protocol Relating to the Status of Refugees and the1969 Organisation of African Unity ConventionGoverning the Specific Aspects of Refugee Problems inAfrica as well as other human rights instruments, andhas in so doing, assumed certain obligations to receiveand treat in its territory refugees in accordance with thestandards and principles established in internationallaw.

Despite the noble decision to domesticate the majorrefugee law instruments, a perusal of the Refugees Actprovides no tangible reprieve for the plight ofxenophobia victims. In our view, the protectioncontemplated by the humanitarian regime is in thefirst instance, protection from the conditions in the

143 See section 39 of the South African Constitution, 1996.144 Emphasis added.

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country of nationality that form the basis of a ‘well-founded fear of persecution’. Any other form ofprotection whilst the asylum seeker or refugee is in thecountry of protection becomes intermingled in theprinciples governing the treatment of foreignnationals. Our conclusion is that the required standardof treatment remains that provided for underinternational human rights law.

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10 South Africa’s obligations in respect of xenophobic violence

10.1 The factual background

The interviews contacted by the social researcher inthis project made both specific and general, butrelevant conclusions. Some respondents were veryconvinced that after careful planning by perpetrators,xenophobia manifested in violence in and aroundPretoria and throughout the country. Since theviolence was authored and executed by fellowmembers of the community, it involved not only deathand serious bodily harm, but arson and theft ofvictims’ personal property. In fact theft and lootingwas one of the items on the agenda of theperpetrators. There was no distinction betweendocumented and undocumented migrants ordistinction based on the place of origin of the foreignnationals. The target description was ‘foreigners’. It ispertinent to note that the violence also took an ethnicdimension with some South Africans from other partsof the country being classified as ‘foreigners’ forpurposes of perpetrating violence on their persons.

10.2 The legal framework in relation to violence

In its ordinary meaning, the word ‘violence’ accordingto the Oxford Concise English Dictionary,145 has fourpossible definitions. First, it is the ‘quality of beingviolent’. Second, it refers to ‘violent conduct ortreatment; outrage, injury’. Third, taking a legaldimension, it depicts ‘the unlawful exercise of physicalforce’. Fourth, still in the legal realm, it also includes‘intimidation by the exhibition of this’. In this case‘this’ refers to ‘violence’. Since the first and second

145 The Concise Oxford Dictionary of current English (1995) 1564.

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definitions resorted to the use of the word ‘violent’, itis necessary to find out the meaning of ‘violent’ sincedefining a word by itself or by its variant is usually veryunhelpful. ‘Violent’ means ‘using or tending to useaggressive physical force’.146 From all theseexpressions; what comes out prominently is thatviolence involves the use of unlawful physical force orthe threat of resorting to such, sometimes involvinginjury.

Article 9 of the ICCPR as read with article 6 of theAfrican Charter and section12 of the Constitution,provides for the right to protection and security of theperson. In particular, section 12 of the Constitution iscomparatively more elaborate than the otherinstruments. It provides as follows:

Freedom and security of the person

12(1) Everyone has the right to freedom and security ofthe person which includes the right to:(a) …(c) to be free from all forms of violence from eitherpublic or private sources;(d) …(e) not to be treated or punished in a cruel, inhuman ordegrading way(2) Everyone has the right to bodily and psychologicalintegrity, which includes the right-(a) …(b) to security in and control over their body;(c) …

Perhaps presenting a clear departure from theerstwhile constitutional order of South Africa beforethe adoption of the 1996 Constitution, the provisionquoted above stands out prominently from thenormative international human rights instruments,which concentrates on elaborating on the rights andguarantees of an arrested person. The Constitutionelaborates on the elements of the right to the security

146 As above.

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of the person. We will not venture into interpreting thequoted provision or any of the referred internationalinstruments as respective judicial and quasi-judicialbodies established to monitor their implementationhave already done so.

In Chongwe v Zambia,147 the author of thecomplaint alleged that he was shot at and wounded byZambian security forces. The state ignored calls tolaunch an investigation. The investigation carried outby the police was not made public. Dealing with themerits of the complaint, the UN Human RightsCommittee (UNHRC) confirmed its previousjurisprudence holding that article 9(1) of the ICCPRprotects the right to the security of a person ‘alsooutside the context of formal deprivation ofliberty’.148 Furthermore, it was held that a state partycannot ‘ignore threats to the personal security of non-detained persons subject to its jurisdiction’.149 TheUNHRC accordingly found Zambia in violation of,among other provisions, article 9(1) of the ICCPR andrecommended the launching of effectiveinvestigations in order, if necessary, to holdperpetrators accountable and possible payment ofdamages to the author in the event that investigationsand prosecutions finds government agentsresponsible for the shooting incident.150

It was in fact in Paez v Colombia151 where theUNHRC had to resort to the travaux préparatoires ofthe ICCPR to decipher the intention of the drafters ofthe text in relation to the context of the right tosecurity of the person. It was concluded that althoughthe right to security of the person was drafted intoprovisions relating to detained persons, ‘there is no

147 (2001) AHRLR 42 (HRC 2000). 148 As above, para 5.3. 149 As above.150 As above, para 7.151 Case No. 195/1985 CCPR/C/39/D/195/1985, Decision of 12

July 1990.

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evidence that it was intended to narrow the concept ofthe right to security only to situations of formaldeprivation of liberty’.152 It was held further that stateparties should take appropriate and reasonable stepsto protect people whose person is threatened eventhough they fall out of the detained category. Ignoringsuch threats would render the protectionineffective.153 This jurisprudence was followed in Diasv Angola,154 and now in the Chongwe case.

The Constitutional Court of South Africa (CC) dealtwith the liability of the state in delict for the negligentacts of its agents acting in the scope and manner oftheir employment, namely, the police and prosecutors.In Carmichele v Minister of Safety and Security &Others,155 the applicant sued the respondents in theCape High Court for damages arising out of injurysustained at the hands of an accused person on bail.The claim was based on allegations of negligent actsof the police (the investigating officer) and theprosecutor handling the case, who, despite havingevidence indicating that the accused person was not aproper candidate for release on bail, failed to presentsuch information before the magistrate presiding overthe accused person’s bail application. The accusedperson had previous criminal records of violent crime.Despite this fact being known to the investigatingofficer and prosecutor, he was released on bail whereafter he attacked the applicant.

In summary, the applicant’s argument both in theHigh Court and Supreme Court of Appeal (SCA), whereboth decisions were an absolution from the instance,was that the common law applicable to South Africashould be developed to recognise the liability of thestate where agents fail to protect a citizen’s right to

152 As above, para 5.5.153 As above.154 Communication No. 711/1996 CCPR/68/D/711/1996, Decision

of 18 April 2000. 155 (2001) AHRLR 208 (SACC).

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security among other rights, which duty is sanctionedby the Constitution. Expressing its opinion that thefacts establish an arguable case against both thepolice and prosecutors, the CC referred to the findingof the House of Lords in Barrett v Enfield LondonBorough Council156 as well as the European Court forHuman Rights in Osman v The United Kingdom.157

And furthermore, the unfavourable decision of theHouse of Lords in X & Others v Bedfordshire CountyCouncil158 led to litigation before the European Courtin Z & Others v United Kingdom.159

Put across in general terms, the ratio decidendi inall these cases was that a state or a local authorityshould be held liable in delict or tort for negligent actsof its agents involving injury to the rights of the publicprotected in the bill of rights and international humanrights instruments in view of the immunity to liabilityordinarily enjoyed by a state or local authority. Themessage sent out by the different courts and tribunalsmentioned above is that indeed states have a case toanswer to claims based on negligent acts of theiragents. The principles of causation, foreseability andnexus are sufficient to shield the state in the event offrivolous and vexatious claims for damages.160

Holding otherwise would effectively preclude plaintiffs

156 [1999] 3 All ER 193.157 29 EHHR 245. 158 [1995] 2 AC 633 (HL). In this case the House of Lords followed

its previous track of jurisprudence in Hill v Chief Constable ofWest Yorkshire [1989] 1 AC 53 (HL) to the effect that the policeshould be shielded from tortuous claims on the basis thatallowing such claims would ‘divert’ the police from their mainduty to suppress crime by exposing it to liability, whichapproach is against the common interest of the community as awhole. The Osman and Z cases represent European Courtjurisprudence which is in stuck contrast to the reasoning of theHouse of Lords. The Barrett case demonstrates the harmonythat now exists between the House of Lords and European Court jurisprudence on this issue.

159 European Court of Human Rights judgment of 10 May 2001. 160 See the Carmichele judgment, para 49.

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from having available to them an appropriate means tochallenge state conduct.161

Whereas the above South African and Englishnational cases represent the principles relating to thedelictual liability of states for the acts of its agents atdomestic level, the Inter-American Court for HumanRights (Inter-American Court) case of Velasquez vHonduras162 elaborated on state responsibility overthe acts of its agents or private parties as follows:163

The State is obligated to investigate every situationinvolving a violation of the rights protected by theConvention. If the State apparatus acts in such a waythat the violation goes unpunished and the victim's fullenjoyment of such rights is not restored as soon aspossible, the State has failed to comply with its duty toensure the free and full exercise of those rights to thepersons within its jurisdiction. The same is true whenthe State allows private persons or groups to act freelyand with impunity to the detriment of the rightsrecognized by the Convention.

As to preventive and other measures a state isrequired to put in place measures to guaranteeprotection of rights, the Osman case was right on thepoint:164

It is common ground that the state’s obligation in thisrespect extends beyond its primary duty to secure theright to life by putting in place effective criminal lawprovisions to deter the commission of offences againstthe person backed up by law enforcement machinery forthe prevention, suppression and sanctioning ofbreaches of such provisions. It is thus accepted by thoseappearing before the Court that article 2 of theConvention may also imply in certain well-definedcircumstances a positive obligation on the authorities totake preventive operational measures to protect anindividual whose life is at risk from the criminal acts ofanother individual.

161 The Bedfordshire judgment, para 111.162 Available at: http://www.corteidh.or.cr/casos.cfm (Accessed on

24 October 2008). 163 As above, para 172.164 Osman (n 157 above) para 115.

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10.3 The liability analysis

Whilst the recount of facts relating to what transpiredduring the xenophobic violence could becontroversial, the findings of the interviews carried outshortly before this legal analysis confirms certaincritical facts consistent with the state’s responsibilityfor injuries sustained by the victims at the hands ofprivate individuals. We now proceed to briefly marrythe facts to the law in the analysis that follows.

First, in its concluding observations on SouthAfrica’s state report in 2006,165 the CERD Committeeurged South Africa to ‘strengthen existing measures’in order to combat xenophobia, and all forms of ill-treatment of non-citizens. Despite this warning, thereis no evidence to show that there existed any ‘existingmeasures’ that could be exploited in order to dealdirectly with the problem of xenophobia in SouthAfrica. In addition, the CAT Committee also recom-mended the investigation of ill-treatment of foreignersand effective monitoring of the repatriation centres toensure their compliance with human rights stan-dards.166 The Special Rapporteur on the Promotionand Protection of Human Rights and FundamentalFreedoms while countering terrorism expressedsurprise at the prevailing perception even withingovernment that despite the clarity of theConstitution, illegal immigrants would not enjoy rightsin South Africa.167

Second, in view of the absence of existingmeasures strengthen or exploit, one would haveexpected the state to adopt the recommendations of

165 CERD Concluding Observations South Africa CERD/C/ZAF/CO/319 October 2006 para 27.

166 CAT Concluding Observations South Africa CAT/C/ZAF/CO/1 7December 2006 para 16.

167 Report of the Special Rapporteur on the Promotion andProtection of Human Rights and Fundamental Freedoms Missionto South Africa A/HRC/6/17/Add.2 7 November 2007 para 38.

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the Osman judgment cited above, namely, putting inplace legislative provisions ‘backed up by lawenforcement’ with a criminal sanction in order toprevent and suppress violation of rights through actssuch as xenophobic violence. While it might be arguedthat the existing criminal law framework could havebeen used to curb xenophobic violence, our view isthat the parameters of the phenomenon ofxenophobia are generally unknown in order to assistlaw enforcement agencies in knowing what exactlythey are enforcing the law against. Even if they could,their personal circumstances in some instances madeit impossible to achieve the objective. Interviewsconducted concluded that many police agents exhibitvery high levels of xenophobic attitudes, whichobviously interfered with their objective assessment ofthe situation and, therefore, the manner ofintervention. The state has failed in its duty to providesuch legislative and other policing measures to curbthe spread of xenophobia.

Third, some respondents assumed that rumoursof xenophobic violence started spreading soon afterthe African National Congress (ANC) conference heldin Polokwane in December 2007. While this statementmay be the subject of heated debate, it is generallyaccepted that speeches with xenophobia overtonesbegan well before May 2008, but only culminated intoacts of violence as witnessed across the country.Despite this clear evidence of brewing intolerance offoreign nationals, no investigation was launched inorder to initiate preventive interventions. Whethersuch failure could be attributed to incapacities in theforce due to lack of expertise or simply failure bygovernment to make and implement a policy wouldnot help the situation as that amounts to grossnegligence motivating for liability more than itexcuses the state.

Fourth, the manner in which the violence wasmanaged by law enforcement agents received scathing

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public criticism. Notwithstanding the obvious fact thatthe police was ultimately overwhelmed by the rowdycrowds beating up foreign nationals, calls for militarypersonnel intervention reached deaf ears. Theunfortunate fact is that the more the state was indenial of the extent of the violence the more casualtiesthe violence produced in the process. In our view thereis no better case that could be made to find the statein violation of its duty to protect its citizens andforeign nationals under its jurisdiction than a casesuch as the current one where people continued to bekilled whilst the state refused to deploy more effectiveprotective measures within its capacity to do. The lawrelating to the right to security of person has alreadybeen enunciated above. It includes the duty to protectindividuals from threats of violence to violence itselfas well as liability arising out of omission to act, bothof which are constitutionally prohibited.168

Fifth, the aftermath of the violence witnessedfurther dereliction of the duty owed by the state tovictims of xenophobic violence. The remedialmeasures arising out of events that attractedinternational attention when they occurred shouldhave been of a similar magnitude in sending amessage that although South Africa was not astute inpreventing the violence, its commitment to redressingthe adverse consequences are loud and clear througheffective investigations, arrest, and punishment ofperpetrators of such violence. However, investigatingthe violence might be sufficient reparation to victims,other forms of reparations should have been adoptedto compensate for loss of life, property and theinhuman and degrading treatment suffered by victims.As it stands, the state has either failed to investigateor make public the outcome of that investigationthereby losing an opportunity to initiate the dialogueof tolerance of foreign nationals among local

168 See the UNHRC jurisprudence on right to security of the personin the Chongwe case above.

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populations whilst the events and internationalcondemnation of such events is still fresh in people’sminds. This is exactly what the Chongwe, Paez andDias jurisprudence urged and concluded.

On the basis of the analysis above, we herebyconclude that the state was in violation of the right tothe security of person of the survivors of and victimswho died during the 2008 xenophobic violence thattook place in South Africa. In particular that is aviolation of section 12 of the Constitution, articles 9(1)and 6 of the ICCPR and the African Charter. The victimsought to be offered reparations taking both pecuniary(monetary compensation) and non-pecuniary (such asinvestigations, prosecution and punishment ofperpetrators) nature depending on the circumstancesof each case.

10.4 Preliminary conclusion

In conclusion, a number of observations have beenmade regarding South Africa’s legal obligations overforeign nationals in respect of xenophobia and itsmanifestation through violence.

First, there are no specific instruments thataddress the issue of xenophobia. To that end,recourse should be had to the human rightsframework as providing the standard for suchprotection.

Second, states have a general obligation to treatforeign nationals in a civilised way, which standard isno longer the national treatment or the internationalminimum, but the standard consistent or better thanthe one sanctioned by international human rightsnorms.

Third, there are national and supranational humanrights instruments that protect individuals fromxenophobic violence.

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Fourth, both the universal and regional humanrights protection system backed up by the SouthAfrican Constitutional framework provide for more orless similar rights and liberties of both nationals andforeign nationals.

Fifth, the sound humanitarian legal regimeapplicable to and in South Africa does not contemplateaddressing the plight of migrants within the context ofxenophobia.

Sixth, based on the above analysis, South Africahas human rights obligations over foreign nationals inrespect of the manifestations of xenophobia throughviolence, perceptions and attitudes, which obligationswere violated and continue to be violated by failing toprovide remedies.

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11 What are South Africa’s obligations, if any, regarding the repatriation of foreign nationals resident in its territory?


In the aftermath of the xenophobic violence, varioussolutions were proposed to address the plight of thedisplaced victims of violence. In the first instancerefugee camps were set up to accommodate thevictims and provide them, in the short term, withmaterial necessities such as shelter, food and water. Itwas always understood that these camps weretemporary and therefore more permanent solutionswere being sought. With the imminent closure ofcamps and increasing doubts by the victims as to thefeasibility of return and re-integration into thecommunities within which the violence had takenplace, certain of the victims opted to return to theircountries of origin.169 It was also reported thathundreds of other foreign nationals affected by theviolence were rounded up in the camps, taken toLindela Detention Facility and deported (some despitetheir refugee or asylum seeker status) withoutconsideration for their safety in their countries oforigin and in disregard of a court order prohibiting thedeportations.170

At the same time, hundreds of people werereported to have ‘voluntarily’ repatriated while the

169 P Rulashe ‘UNHCR begins repatriating victims of xenophobicviolence’ UNHCR 27 August 2008 available at http://www.reliefweb.int/rw/rwb.nsf/db900sid/YSAR-7HWMZF?OpenDocument(accessed 28 October 2008).

170 Lawyers for Human Rights Press Release on an urgentapplication challenging the unlawful detention and deportationof refugees 14 October 2008 available http://www.lhr.org.za/news/2008/lhr-urgent-application-challenging-unlawful-detention-and-deportation-refugees (accessed 29 October2008).

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xenophobic violence was going on, raising questionsas to whether this was genuine voluntary repatriationnotwithstanding any information regarding theconditions they fled from when they came to settle inSouth Africa. Despite their inclination to despoticleadership, governments of some countries likeZimbabwe further complicated the situation byproviding free transport to Zimbabwean exiles whointended to go back home. This, in our view, was nota demonstration of the willingness and ability ofZimbabwe to provide protection to its nationals ascontemplated by international refugee law. It was adesperate political gimmick aimed at portraying to theinternational community a false atmosphere that thereis tranquillity and peace in Zimbabwe, and that thereis no crisis. In actual fact this was a lip-serviced carefor citizens whom the government drove out of thecountry through political persecution in the aftermathof the Zimbabwe African National Unity-Patriotic Front(ZANU-PF)-stolen presidential elections held inZimbabwe during early 2008.

Another good and clear example of involuntaryrepatriation is that of the Somalis refugees and asylumseekers referred to earlier in this report. After theclosure and destruction of the Akasia Camp in March2009, this group of people requested to be taken toLindela Detention Centre to be kept there awaitingrepatriation. This was not because repatriation wastheir choice, but because they felt so unsafe in SouthAfrica such that it was ‘better off’ to be taken back toSomalia. Fortunately, they were not admitted to theLindela Detention Centre on account of the fact thatthey were documented immigrants.171 As will bedemonstrated below, all these facts depict a gloomypicture of inability of states to live up to the

171 These facts are based on the interviews carried out by theCentre for Human Rights and its partners on 7 March 2009 inRandfontein where the respondents currently reside.

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expectations of their international obligations arisingout of international refugee law.

11.2 The legal framework with regard to repatriation

Repatriation is often used to depict the voluntaryreturn of former refugees to the territory of originfollowing the cessation of international protection inrelation to them. In this study, ‘repatriation’ is used tomean returning an individual to their homeland,voluntarily or otherwise. Repatriation takes ondifferent connotations depending on the differentcontexts in which it is applied. For instance,repatriation may be voluntary as is applied by theUNHCR in the context of durable solutions for themanagement of refugee situations.172 The promotionand facilitation of voluntary repatriation is the soleresponsibility of the UNHCR.173 Voluntary repatriationis applied in the context of refugees because the grantof refugee status may depend on a subjective fear ofpersecution in their country of origin. At any rate, theobjective test applied in the case of mass influxes ofasylum seekers due to inter alia events seriouslydisturbing public order174 recognises that individualsflee because of very real threats to their lives.

In their order of preference, repatriation ranks topof the list of ‘durable solutions’ to the problem ofrefugees alongside settlement or assimilation(integration) as well as resettlement in a third country.This is based on the notion that despite being in theprocess of fleeing adverse conditions from country oforigin, a refugee always entertains a wish that one daythey will be able to return to the country of origin. Tobolster this expectation, returning to country of originhas always been treated as a right of refugees with acorresponding duty on the sending state to receive

172 See Art. 5 of the OAU 1969 Convention.173 Goodwin-Gill (n 39 above) 492.174 OAU Refugee Convention art 1(2).

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such returnees unconditionally.175 In stark contrast,the granting of asylum is an absolute privilege. This,in our view, has led international refugee law todevelop in a way consistent with treating internationalprotection of refugees as a temporary arrangement –the default approach.

The 1951 Refugee Convention does not explicitlyaddress the issue of voluntary repatriation. However,refugee status ceases if a refugee voluntarily returnsand re-settles in the country of origin.176 Similarly, theOAU Refugee Convention describes the cessation ofrefugee status as occurring when a refugee ‘hasvoluntarily re-established himself in the country whichhe left or outside which he remained owing to fear ofpersecution’ or ‘can no longer, because thecircumstances in connection with which he wasrecognized as a refugee have ceased to exist, continueto refuse to avail himself of the protection of thecountry of his nationality’.177

11.3 The principle of non-refoulement

Repatriation, whatever form it assumes, is oftendiscussed in the context of the legal protectionaccorded to asylum seekers and refugees; theprotection against refoulement. ‘Refoulement’ refersto the return or rejection of refugees or asylumseekers, including illegal immigrants, back to thecountry of origin or any other country without regardto the persistence of persecution in the territorieswhere they are repatriated. The principle of non-refoulement was developed in order to curb thepractice of returning or rejecting those in flight on thebasis that returning them to persecution was contraryto the essence of international refugee law.

175 Goodwin-Gill (n 39 above) 489.176 UN Refugee Convention art 1C(1) & (4).177 OAU Refugee Convention art 1(4) (d) & (e).

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As to the normative basis of non-refoulement,article 3 of the OAU 1969 Convention and article 32 ofthe UN 1951 Convention generally provide for theexpulsion of refugees from host countries. Non-refoulement has been interpreted in many otherinternational treaties with declarations being made byvarious bodies implying that the principle might haveattained customary international law status.178 Softlaw also abounds with similar sentiments.179 However,Goodwin-Gill and Macadam observed that thisproposition is easier said than proven.180 As to howthe principle applies, some supported the view that itapplies only at frontiers whilst others said it applied tothose refugees already within the territory of amember state. The accepted view supported by statepractice is that the principle applies both at borders orfrontiers as well as within the territory of the receivingstate.181 For this reason the OAU 1969 Convention

178 Art 3 of the UN Convention Against Torture, art 7 of the ICCPRwherein the UNHRC in General Comment No. 31 interpreted theprovision to include non-refoulement to cover torture, inhumanor degrading treatment. Art 45 of the Geneva ConventionRelative to the Protection of Persons in Time of War providesnon-refoulement by prohibiting the sending of prisoners of warback to the countries or any other territory where they could bekilled, tortured or treated inhumanly or degradingly. See also art22(8) of the American Convention on Human Rights, Art. 12(3)of the African Charter, art 3 if the European Convention nHuman Rights wherein the European Court of Human Rightsinterpreted art 3 in Soering v UK (1989) 11 EHHR 1 as beingviolated when state extradites a person to a country where hecould be tortured or treated inhumanly or degradingly. Forcommentaries on non-refoulement and customary internationallaw status, see K Hailbronner, ‘Non-Refoulement andHumanitarian Refugees: Customary International Law of WishfulLegal Thinking’, (1986) 26 Virginia Journal of International Law857.

179 On soft law on non-refoulement, see the UNHCR ExecutiveCommittee Conclusions available on www.unhcr.org.

180 As above.181 European Roma Rights Centre v Immigration Officer at Prague

Airport (UNHCR Intervening) 2 AC 1[2004] UKHL 55 para 26, perLord Bingham. Cited by Goodwin-Gill Goodwin-Gill (n 39 above)208.

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http://www.unhcr.org

http://www.unhcr.org


and the American Convention have been commentedfor being elaborate on the scope of application of theprinciple.182 Further to the scope of application, theauthors concluded thus:183

Equally irrelevant is the legal or migration status of theof the asylum seeker. It does not matter how the asylumseeker comes within the territory or jurisdiction of thestate; what counts is what results from the actions ofthe state agents once he or she does. If the asylumseeker is forcibly repatriated to a country in which he orshe has a well-founded fear of persecution or faces asubstantial risk of torture, then that is refoulementcontrary to international law.

The accepted exceptions to the application of non-refoulement are national security in the sense thatwhere a particular person or group of persons pose anational security to the host state, then they could berefouled. State practice has shown that states easilyrely on national security hence jurisprudence has beendeveloped to require states claiming national securityto demonstrate two things: one, on ‘reasonablegrounds’ that a particular individual poses securityconcerns; and, two, due to the seriousness of theconsequences of refoulement, a high threshold forjustifying an exception should be established. Due tothe fact that people who have been convicted ofserious offences are generally regarded as stimulatingnational security concerns, in the Australian case of Av Minister of Immigration & Multicultural Affairs,184 itwas held that the correct approach is to assess thelikelihood of the danger the person poses as opposedto the gravity of his previous convictions.

Concerns have been raised about voluntaryrepatriation, including the extent to which return isvoluntary, and the voluntary repatriation in situationswhere the receiving state is not yet in a position toguarantee the safety of returnees. There are certain

182 Goodwin-Gill (n 39 above) 208.183 As above, 233.184 [1999] FCA 227

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practices which amount to ‘constructive refoulement’such as subjecting asylum seeker and refugees insqualid conditions in immigration detention centres orexpose them to violence in order to influence them toleave the territory under the guise of voluntaryrepatriation.185

In the case of South Africa and the xenophobicviolence this is similarly an issue. Whereas in the caseof countries with large numbers of refugees, ‘asylumfatigue’ may be the reason why refugees are‘encouraged’ to leave, in South Africa the persistenceof xenophobia and xenophobic violence in particularmay result in pressure on refugees to return to theircountries of origin despite conditions there not beingconducive to return. This was reportedly the situationfacing certain refugees and asylum seekers who werevictims of xenophobia and subsequently experiencedmistreatment and injustice at the hands of officials ofthe Department of Home Affairs.186

11.4 Deportation of refugees and asylum seekers is contrary to international law principles and contrary to South Africa’s Refugee Act

It is settled in international law that a state may,subject to treaty obligations, exercise its sovereign

185 See the Somali refugees case discussed above. The authors takethe view that such was a clear case of constructive refoulementwhere the refugees were forced to reintegrate in communitieswhere integration was patently impossible. As a result, thegroup sought to be ‘voluntarily repatriated’ to Somalia, a placewhere no authority exists to assume responsibility over thesepeople. There is no better case of constructive refoulement ofrecognised refugees as this.

186 Lawyers for Human Rights Press Release on an urgentapplication challenging the unlawful detention and deportationof refugees 14 October 2008 available http://www.lhr.org.za/news/2008/lhr-urgent-application-challenging-unlawful-detention-and-deportation-refugees (accessed 29 October2008).

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http://www.lhr.org.za/news/2008/lhr-urgent-




authority to control entry, residence or expulsion offoreign nationals. In terms of article 13 of the ICCPR,expulsion of foreign nationals is subject to some levelof due process rights. The question of expulsions offoreign nationals without affording them anopportunity to be heard has been considered by theAfrican Commission on Human and Peoples’ Rights tobe a violation of the African Charter.187

The Constitutional Court of South Africa (CC) hasalso had occasion to decide on the treatment of illegalforeigners in a case188 that challenged the constitu-tionality of certain provisions of the Immigration Act.One of the impugned sections was found to beunconstitutional because it did not provide for judicialoversight in the case where persons declared to beillegal foreigners were detained on a ship (‘ship’ takenbroadly to define and include at the very least, allmodes of transport by which people may arrive atports of entry).189 In the process of deciding thisissue, the CC underscored the necessity of affordingconstitutional safeguards to detained personsincluding illegal foreigners.190 Foreign nationals havethe same constitutional rights as South Africancitizens unless the contrary clearly emerges from theConstitution.191

11.5 Liability analysis

While the details of what may have happened inrelation to the repatriation of foreign nationalsfollowing the xenophobic violence are somewhatsketchy in this study, it became clear that soon after

187 Organisation Mondiale Contre la Torture and Ors v Rwanda(2000) AHRLR 282 (ACHPR 1996).

188 Lawyers for Human Rights & Another v Minister of Home Affairs& Another Case CCT 18/03 2004 (4) SA 125 (CC).

189 Paras 42-43.190 Para 42.191 Patel & Another v Minister of Home Affairs & Another [2000] 4

All SA 256 (D).

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the violence ceased, the group of victims was made upof at least three distinct elements. First, there was thecategory of officially recognised refugees, some ofwhom still yielded their refugee identity documentsand some who lost them during violence. Second,there were the asylum seekers, who held temporarypermits, some of whom lost the permits and thosewho still had them. Third, there were ‘economicmigrants’ and other migrants, who had not yetapproached authorities to apply for asylum and alsothose who simply did not intend to do so. The thirdcomponent could be collectively referred to as ‘illegalimmigrants’. However, for the reason that bothformally recognised refugees and asylum permitholders who no longer possessed immigration papershad become indistinguishable, the whole group couldeasily be incorrectly deemed to be made up of ‘illegalimmigrants’.

Having regard to the composition of the abovegroup, our position is that all of them were eligible forprotection under the principle of non-refoulement. Ithas been settled that non-refoulement applies toasylum seekers at frontiers as well as to those alreadyin the territory of the host state, with their illegalimmigrant status being irrelevant. Refugees andasylum seekers are entitled to exercise a voluntaryoption to return to their countries of origin, and uponreturn their status expires. There are reports thatconfirm that despite the government’s commitmentnot to repatriate victims of xenophobic violence, somewere ferried from the camps to Lindela DetentionFacility and eventually deported.192 Our position isthat the state should have allowed the victims atemporary reprieve to enable them to have their

192 Remarks made by a Lawyers for Human Rights official during ameeting with one of the researchers in this project in February2009 amid a discussion on some litigation going on in thePretoria High Court involving asylum seekers whose permitshave expired and the government is refusing or delaying torenew them.

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refugee status restored, or temporary asylum permitsre-issued or the application for asylum by first-timers.Mass deportation of such individuals was a clearviolation of international refugee law. Non-refoulement, although it sounds like automaticadmission to asylum, serves to oblige the host state toadmit asylum seekers while a solution is being sought.One of the solutions is to determine whether suchpeople are indeed in need of protection. If so, thenrefugee status is conferred. If not, the state has asovereign right to deport them having been convincedthrough the asylum application process that it is notreturning them to face possible persecution.

Furthermore, under the circumstances in whichcertain victims of xenophobia opted for repatriationseemingly of their own volition, it is doubtful whethertheir decision could be termed as truly voluntary. Wehave already mentioned the practice by some states ofconstructive refoulement. We reiterate our positionthat there was a clear case of constructive refoulementwhen migrants opted to return to their countriesduring the currency of the violence simply becausethey did not receive the requisite protection by thestate from violence and bodily harm. In the first issue,we assessed the conduct of the state regarding theinadequacies of intervention strategies that weconcluded to have been negligent and incongruent tothe magnitude of the violence. Flowing from thatfailure to protect victims from violence we haveconcluded that the exposure to violence left victimswithout a choice but to unwillingly leave the territoryin circumstances replicating ‘constructive repatria-tion’.

There were mixed signals from the Department ofHome Affairs as to whether those foreign nationals inthe country illegally, and who had fallen victim to the

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xenophobic violence would be deported or not.193 Thefact that the illegal status of these foreign nationalscame to light in the context of the xenophobicviolence and the accompanying destruction ofpersonal property including identity documentation,should be cause for the exercise of caution during thedeportation process. In this situation, the failure toproduce identity documents or immigration permitswould not necessarily mean that the affectedindividual was in the country illegally. The procedureadopted to replace lost documents194 would appear tohave been the correct approach to deal with theproblem. Where the possibility of deportation arose,such eventuality should only have been taken once theindividual had gone through the full asylum processand the state had scrupulously respected the variouslegal provisions in place to safeguard the rights offoreign nationals, primarily due process rights.

The arbitrary arrest and subsequent deportation ofrefugees and asylum seekers was contrary tointernational and national law. The deportation ofother foreign nationals on the basis of being in thecountry illegally, contrary to declarations by theMinister of Home Affairs that no-one affected by thexenophobic violence would be subjected todeportation, is not only morally reprehensible, butalso illegal.195 This is much more so where the foreignnationals were subjected to mistreatment at the handsof government officials. Therefore, three conclusionscome out clearly in this analysis; first, it is clear thatthe state has a duty by virtue of the non-refoulement

193 ‘Govt: Victims of xenophobia won’t be deported’ Mail andGuardian online 20 June 2008 http://www.mg.co.za/article/2008-06-20-govt-victims-of-xenophobia-wont-be-deported(accessed 31 October 2008).

194 As above.195 ‘Amnesty International calls on government to protect those at

risk of "xenophobic" attack’ Amnesty International PublicStatement 23 May 2008 http://www.amnesty.org.za/portal/index.php?option=com_content&task=view&id=16&Itemid=1(accessed 31 October 2008).

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principle not to return refugees and asylum seekers toterritories where they might face persecution unlessthrough a normal asylum application process, theapplicant has failed to qualify for protection and hasexhausted available appeal procedures. Second, in theaftermath of the xenophobic violence, refugees,asylum seeker permit holders and undocumentedmigrants were directly mass deported. Third, by virtueof negligence in dealing with the violence andsubjecting victims to unbearable detention conditions,the state constructively refouled genuine asylumseekers and recognised refugees back to territorieswhere they expressed a well-founded fear of per-secution on their return.

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12 What are South Africa’s obligations, if any, regarding access to socio-economic rights by foreign nationals resident in South Africa?


Although xenophobic sentiment is relatively highwithin South Africa, the violence experienced in May2008 and on previous occasions has the distinctcharacteristic of being localised within informalsettlements with high levels of poverty. Socio-economic factors have been identified as a cause ofthe conflict, with allegations being made that foreignnationals took up job opportunities that rightfullybelonged to South Africans, and also that theybenefited from public services at the expense ofnationals. In fact, a report released by the HumanSciences Research Council identified the occupation ofstate-provided housing by non-South Africans as oneof the most important triggers of xenophobicviolence.196 Foreign nationals reportedly gainedaccess to Reconstruction and Development Program(RDP) houses through a variety of means includingfrom government officials through corruption, or saleor rent by South African owners, a fact which was alsoreferred to by respondents in this study.197

12.2 The legal framework in relation to access to socio-economic rights

Neither the Refugees Act nor the UN 1951 Conventionprovides for the rights of asylum seekers pending therecognition for protection as refugees. As alreadydiscussed regarding treatment of foreign nationals,

196 Human Sciences Research Council (HRSC) ‘Violence andxenophobia in South Africa: Developing consensus, moving toaction’ (2008) 26.

197 See sociological research findings above.

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the UNHCR adopted a document entitled ‘Reception ofAsylum Seekers, including Standards of Treatment, inthe Context of Individual Asylum Systems’,198 in whichthe right of asylum seekers to basic human rights isasserted.199 In order to alleviate the difficulty ofdetermining what rights asylum seekers are entitledto, the Executive Committee Conclusion No. 93provides that asylum seekers should be entitled tofood, clothing, accommodation, medical care,educational and recreational facilities for children, andpost-trauma specific needs for victims of sexualassault and so on.200

The International Covenant on Economic, Socialand Cultural Rights (ICESCR) is the primary instrumentthat elaborates on socio-economic rights. Otherinstruments containing socio-economic rights aremore specialised and focus on the rights of vulnerablegroups such as women, children, refugees, migrantworkers and persons with disabilities. The majority ofthese instruments depart from the premise that stateparties are to enable access to socio-economic rightsto all those within their jurisdiction, albeit perhaps atdiffering levels such as the case of refugees. Inaddition, the ICESCR provides that developingcountries ‘with due regard to human rights and theirnational economy, may determine to what extent theywould guarantee the economic rights recognised bythe … Convention to non-nationals’.201 South Africahas not ratified the ICESCR and is therefore not strictly

198 Global Consultations on International Protection, UN doc. EC/GC/01/17 (4 September 2001) para 3.

199 The notion of ‘basic rights’ is always difficult to interpret. Onewonders if it refers to civil and political rights or socio-economicrights. An interpretation could be preferred which favour thoserights that are central to the livelihood of human beings, whichmight include some civil and political rights such as right to life,dignity, security of the person, right to property; socio-economicrights such as the right to work, food, health, shelter etc.

200 Executive Committee Conclusion No. 93 (available at http://www. unhcr.org).

201 ICESCR art 2(3).

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legally bound by its provisions. However, most ofthese obligations arise from the South AfricanConstitution, which makes socio-economic rightsjusticiable.

The standard of treatment to be afforded toforeign nationals has been discussed in earliersections of this study, whether the minimum standardor the equal treatment standard. This debate goesfurther when one considers the status of differentmigrants, whether they are legal or illegal. Thereexists a tension in human rights law in general,between the principles of state sovereignty and therights of individuals. This tension is evident inmigration matters because states have the prerogativeof allowing foreign nationals into their territory, and atthe same time an obligation to respect and fulfilindividual human rights of those within the territory.Where states have exercised their prerogative toregulate entry and have granted entry and stay tomigrants and thus legitimising their being within theterritory, it is easier for states to then provide accessto a wide range of rights including socio-economicrights.

In the case of Minister of Home Affairs vWatchenuka, the Supreme Court of Appeals grappledwith just such a tension, where an asylum seeker wasprevented from taking up employment and her sonfrom studying by a general prohibition against suchrights for asylum seekers.202 The Court found thatsuch a general prohibition could not stand because insome cases the right to work and education were veryclosely affiliated to the human dignity of the asylumseekers. Any limitations to their rights would requireto be justified with this in mind.

Foreign nationals irregularly within a state aredistinguished by two factors, their irregular entry or

202 Minister of Home Affairs & Others v Watchenuka & Others 2004(4) SA 326 (SCA) paras 32-34.

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stay and their consequent vulnerability. These twofactors impinge directly on the causes for tensionbetween state sovereignty and individual humanrights. States are, on the one hand reluctant to grantaccess to rights for this group of migrants so as not tobe construed as acquiescing to the migrants’ irregularentry and stay, particularly because owing to thecircumstances of entry of the migrants, the state wasnot given the opportunity to exercise a sovereigndecision to allow entry or otherwise. On the otherhand, irregular migrants as human beings are entitledto certain human rights guarantees accruing to all anddistinct from entitlements attached to citizenship.203

The vulnerability of undocumented migrantsstems from the persistent apprehension that theywould be arrested and deported. This fear is justifiedbecause foreign nationals are under obligations tocomply with the laws and regulations of the states inwhich they find themselves.204 Thus illegal entry andstay attracts sanction by the state. The effective takeup of social services by illegal foreign nationals, torealise rights or legal services in order to vindicaterights is, as a consequence, doubtful. Often theseservices will require the disclosure in some way ofones’ status within the country, perhaps by theproduction of identity documents, and the lack of validdocuments may result in immigration officials beingalerted to the situation. In a country like South Africa,where xenophobic sentiment is high, such aneventuality is not unforeseeable.205

203 Debates around these tensions were evident during the draftingof the International Convention on the Protection of the Rightsof All Migrant Workers and Members of their Families (CMW).See generally LS Bosniak ‘Human rights, state sovereignty andthe protection of undocumented migrants under theInternational Migrant Workers Convention’ (1991) 25International Migration Review 737-770.

204 See for example 1951 Refugee Convention art 2; CMW art 34.205 See Crush (n 5 above) where a survey shows that high

percentages of South Africans would take various sorts ofactions against foreign nationals living in their communities.

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At the national level, a further dimension is addedto the debates involving non-nationals, that of tryingto achieve greater equality between nationals and non-nationals and the need to respond to social tensions,particularly in times of economic hardship where non-nationals are perceived to have access to social goodsat the expense of nationals.206 Bearing this in mind, itis noteworthy that the Constitution of South Africadoes not, in terms of socio-economic rights, make adistinction between nationals and non-nationals. Therights of access to housing, healthcare, food, watersocial security and education are guaranteed to‘everyone’.207 The Refugee Act provides that refugeesare entitled to the rights contained in the Bill of Rightsin the Constitution.

In Khosa v Minister of Social Development,208 itwas held as follows in relation to access to socio-economic rights:209

The socio-economic rights in our Constitution areclosely related to the founding values of human dignity,equality and freedom. Yacoob J observed in Governmentof the Republic of South Africa and Others v Grootboomand Others that the proposition that rights areinterrelated and are all equally important, has immensehuman and practical significance in a society foundedon these values.

And further that

Equality in respect of access to socio-economic rights isimplicit in the reference to ‘everyone’ being entitled tohave access to such rights in section 27. Those who areunable to survive without social assistance are equallydesperate and equally in need of such assistance.210

206 S Da Lomba ‘Fundamental social rights for irregular migrants:The right to health care in France and England’ in B Bogusz et al(Eds) Irregular migration and human rights: theoretical,European and international perspectives (2004) 363-386 364.

207 Constitution of South Africa secs 26, 27 & 29.208 2004 (6) SA 505 (CC).209 Para 40 of the Khosa Judgment.210 Para 42 of the Khosa Judgment.

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Elaborating on the ambit of ‘everyone’ as provided forin section 27 of the Constitution, the CC adopted aconsistent practice of interpreting the Constitutionpurposively and held that in the absence of a clearintention to limit the benefit of social security tocitizens in section 27, the provision admitted theinclusion of the categories of people other thancitizens.211 Furthermore, the CC recalled that section7(1) of the Constitution protects the rights andfreedoms of ‘all people in our country’. On this basis,the CC was convinced that ‘everyone’ includescategories of people other than citizens.212

Further expounding on whether the Constitutionapplied to permanent residents in the Khosa case, theCC formally recognised permanent residents as a‘vulnerable’ group of people, therefore, in need ofconstitutional protection.213 In testing thereasonableness of the measures, the CC held that thecontext was important.214 The mere fact thatpermanent residents were denied social security whichthey otherwise would have gotten had it not been forlack of citizenship was deemed to directly ‘engage’equality under section 9 of the Constitution.

However, the CC had an occasion to mention inpassing the obligations of the state in relation to‘illegal immigrants’. The Court held thus:215

It may be reasonable to exclude from the legislativescheme workers who are citizens of other countries,visitors and illegal residents, who have only a tenuouslink with this country. The position of permanent

211 Similarly, in Patel v Minister of Home Affairs 2000 (2) SA 343(D), it was held that the default interpretation of the Constitutionis that the Bill of Rights similarly applies to both citizens andforeign nationals unless the contrary emerges from theConstitution itself.

212 Paras 46 & 47 of the Khosa judgment.213 As above. 214 Para 49 of the Khosa judgment.215 Para 59 of the Khosa judgment.

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residents is, however, quite different to that oftemporary or illegal residents.

The above remarks complicate the position ofrefugees, asylum seekers and other migrants. It seemsthat the CC places due weight on one’s immigrationstatus when it comes to access to social security orassistance. We would hasten to distinguish anapproach whereby those under or in need ofinternational protection (foreign nationals) under therefugee law seek inclusion in a social security schemefrom another where such people clamour for access tosocio-economic rights. If such an approach isaccepted, it means that whereas the Khosa casesounds to be focused on social security, the rest of thejudicial observations in relation to access to socio-economic rights as part and parcel of the right todignity are directly applicable to the case of refugees,asylum seekers and undocumented migrants.Accordingly the CC held as below:216

The right of access to social security, including socialassistance, for those unable to support themselves andtheir dependants is entrenched because as a society wevalue human beings and want to ensure that people areafforded their basic needs. A society must seek toensure that the basic necessities of life are accessible toall if it is to be a society in which human dignity,freedom and equality are foundational.

We contend that while the right of access to socio-economic rights by refugees, asylum seekers andundocumented migrants is not similar to claimingadmission to the social security scheme, such accessfalls within the ambit of social assistance ascontemplated by section 27(2) of the Constitution.Read together with the proposition of the CC thatsocio-economic rights engage the pillars of the Bill ofRights (human dignity, equality and freedom), thehuman rights standard of treatment of foreignnationals, which included rights such as humandignity, would require the state to facilitate as far as

216 Para 52 of the Khosa judgment.

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possible, access to socio-economic rights by foreignnationals in order to protect their right to dignity.

12.3 Liability analysis

Several issues arise when one considers the issue ofaccessibility and entitlement to socio-economic rightsin relation to foreign nationals. As we have donebefore in previous sections, we will consider the issuesin the context of the broad categories of refugees andasylum seekers and illegal migrants. The questionsrevolve around the nexus between socio-economicrights and non-nationals at two levels. The first is atthe level of government obligations to counterperceptions that contribute to xenophobia andviolence, the sentiments that blame foreign nationalsfor the failures in service delivery and poverty. At thesecond level is government’s obligation to address therights of foreign nationals within the territory,particularly addressing their situation, madeincreasingly vulnerable as a consequence of thexenophobic violence.

State obligations towards the realisation of rightsare also cast in a widely accepted typology, that is, theduties to respect, protect and fulfil human rights. Theduty to respect is not widely implicated to the extentthat the manifestation of xenophobic violence wasexhibited by members of the communities in whichthe foreign nationals lived. However, to the extent thatstate functionaries such as members of the policeforce, acting in their capacity as such, are alleged tounlawfully destroy identity and immigrationdocumentation that allows migrants to live in SouthAfrica, this constitutes a breach of the duty to respectsocio-economic rights. Without these documentsforeign nationals will be unable to access socialservices, to work and generally make a living.

In terms of the duties to protect, the state isrequired to ensure that individuals are not prevented

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from securing their socio-economic rights, either bythe state or by other individuals. As such, the state wasunder an obligation to prevent the violence, thelooting and destruction of the livelihoods ofxenophobia victims as this interfered with their abilityto access socio-economic rights.

The duty to fulfil is undoubtedly the most onerousone on the state when it comes to socio-economicrights and is now discussed. While the case of refugeesappears to be cut and dried in the sense thatinternational and national law protects the socio-economic rights of refugees in the country of refuge,the position of undocumented migrants poses aprecarious state of affairs. If recourse is had to theapplication of the non-refoulement principle, the stateis obliged to afford undocumented migrantstemporary reprieve until such a time as a solution isfound.217 We have already concluded that one of thesolutions is to ensure that all undocumented migrantswho wish to apply for asylum should be accorded achance to do so. Once this is concluded, the state isleft with two categories of persons; those that qualifyfor protection (refugees) and those that do not and areconsequently eligible for deportation. However, untilsuch a time that these people have been deported, thestate has responsibility over them. This should includeaccess to socio-economic amenities, not to mentionrelevant civil and political rights already discussed inthe preceding portions of this research.

To the extent that the perception exists thatrefugees are not entitled to access social services andsuch perception serves as the basis of xenophobicsentiment and action, the state would be responsiblefor not having done more to correct such amisconception. Studies have shown that in relativeterms, foreign nationals perceived to be in the country

217 See discussion on the principle of non-refoulement sec. 11.3above.

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illegally bear the brunt of intensive dislike incomparison with refugees and asylum seekers. Theillegality of entry and sojourn in the country isextrapolated into other spheres of illegality such ascrime. There have, however, been incidents whererefugees were attacked, indicating that the distinctionis not always the guiding principle in determining thetargets for xenophobic acts.

Similarly, refugees’ access to social servicesshould not be in question. The uncertainty may lie inwhat standard of treatment refugees should receive.Based on constitutional provisions and the RefugeesAct,218 it can be deduced that refugees are entitled tothe same standard of treatment as nationals. This viewis buttressed by the strong adherence to the notionsof equality and human dignity that underlie theConstitution and the South African state. We submitthat when one determines whether or not a foreignnational is entitled to socio-economic rights containedin the Bill of Rights, they are required to considerinternational law in applying the Bill of Rights.Consequently, international law (refugee law) providesthat a state has responsibility over foreign nationals inits territory who have not yet gone through the asylumapplication process until such a time that they haveand have not been successful.

Deporting or refusing service provision toundocumented migrants pending status deter-mination is a clear violation of the obligation not torefoule migrants unless following a failed asylumapplication process. This is more so because at times,while there is no right to remain in a foreign territoryfor socio-economic reasons, refoulement of people toplaces where socio-economic conditions amount toinhuman or degrading treatment is a violation of

218 Sec 27.

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international refugee law.219 However, the standard ofproof is relatively high where the applicant is expectedto demonstrate circumstances posing a particular riskas opposed to mere recital of lack of proper medicalcare, employment or any other socio-economicopportunity.220

By virtue of the increased hostility towards illegalforeign nationals, it follows that even more needs tobe done by government to dispel notions by nationalsthat foreign nationals are the reason why socialservices are not delivered and that foreign nationalsare responsible for increased unemployment. Thegovernment has failed to effectively regulate access tohousing and employment practices and this has led toforeign nationals acquiring houses, and also acceptingjobs at lower wages, thus undercutting theexpectations of unionised labour.

The question of what foreign nationals are entitledto in terms of access to socio-economic rights is onethat needs to be determined by the state, since thereis no internationally agreed-upon position. The lack ofa policy that balances the state’s legitimate power toregulate its borders with the rights of individualsregardless of their status once in the country is largelyresponsible for creating the space within whichhostility towards illegal non-nationals grows.Importantly, the policy would have to grapple with howto make the protection of the rights of illegal foreignnationals a reality if the threat of arrest anddeportation confronts those who would claim suchrights.

219 This follows the European human rights jurisprudence on Art. 3of the European Convention as interpreted by the EuropeanCourt of Human Rights in D v UK (1997) 24 EHRR 423. TheHouse of Lords followed the same line in N v Secretary of Statefor the Home Department [2005] UKHL 31. See also A Cassese,‘Can the Notion of Inhuman and Degrading Treatment beApplied to Socio-economic Conditions?’ (1991) 2 EuropeanJournal of International Law 141.

220 As above.

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13 What are South Africa’s legal obligations, if any, in respect of re-integrating victims of xenophobic violence?

13.1 Factual background

After the onset of xenophobic violence against foreignnationals in May 2008, the South African governmentwas faced with a situation in which it did not appear tohave a clearly co-ordinated response towards theproblems faced by victims of violence. Immediatelyafter the violence, the priority was to remove thevictims to places of safety, which was done by placingthem in camps. The intention was that these campsserve as temporary shelters for foreign nationals,more so because the living conditions in the camps didnot meet acceptable standards. Following mountingpressure to close the camps, the options apparentlyavailable to government were to reintegrate theforeign nationals, deport those in the country illegallyand assist those who volunteered to return to theircountries of origin.

The solution contemplated, that of reintegratingforeign nationals into communities from which theyhad fled, proved problematic in that while it wasdesirable that foreign nationals go back to thecommunities where they had already establishedroots, and continue their lives where they had left off,they had been violently expelled from thesecommunities and were therefore justifiably afraid ofgoing back.221 In addition, it was not clear how muchhad been done to address the grievances underlyingthe violence in order to guarantee the communities’

221 ‘No “forced reintegration” for immigrants’ The Times 10 June2008 <http://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=781999> (accessed 20 November 2008).

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openness to accepting back the foreign nationals.222

The drive towards reintegration was said to begovernment’s priority in order to avoid creatingspecial living areas for displaced foreign nationals.223

Government had already stated that foreign nationalswould not be deported, but if they chose to repatriatethey would be assisted in this endeavour.224 Thepertinent question is therefore whether there was anyobligation on government to reintegrate foreignnationals into communities, whether this obligationwas legal or otherwise, and what was required ofgovernment to fulfil this obligation, if it existed.

13.2 Legal framework and liability analysis

It should be stated from the outset that there exists nointernational refugee law obligation on states tolocally integrate refugees under their responsibility.As is the case with third country resettlement, localintegration is ‘a sovereign decision’ falling within theunassailable prerogative of the host state.225 In fact itis the state receiving repatriating refugees that bearsan obligation to receive such people in peace anddignity given that by taking flight, refugees do notrelinquish their right to return to territories of origin.Perhaps this explains why, despite the desirability oflocal integration being a legal obligation, virtually allinternational treaties on refugee law do not create anobligation on states to integrate locally despite statesbeing urged to consider it as a durable solution to theproblem of refugees.

222 ‘Reintegration conditions “good”’ News24 25 July 2008 http://www.news24.com/News24/South_Africa/Xenophobia/0,,2-7-2382_2364203,00.html (accessed 20 November 2008).

223 ‘Reintegration the priority – government’ IOL 4 June 2008<http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20080604125107561C769068> (accessed 20 November 2008).

224 As above.225 Goodwin-Gill (n 39 above) 489.

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Soft law on local integration abounds. Withoutpurporting to create an obligation to integrate, theUNHCR’s Executive Committee Conclusion of 2005(2005 Conclusion) presents the most detailed status oflocal integration as a durable solution to refugeeproblems in international refugee law.226 TheExecutive Committee made a number of observationsrelating to the debate on whether or not states yieldany obligation to local integration. It is widelyacknowledged that there is no obligation on states tofacilitate local integration.227 Remarkably, despite thegeneral silence of international instruments on thisissue, the OAU 1969 Convention has beencommended as coming close to establishing anobligation to integrate locally in article 2(1) and (5).228

Apparently, one needs to employ a very benevolentinterpretation to arrive at that conclusion. Perhaps theprovision needs to be taken as stronglyrecommending and exhorting African states toconsider ‘settlement’ (local integration) as a durablesolution to refugee problems. A propositionsuggesting the existence of an obligation on Africanstates to integrate refugees is not free from legaldifficulty.

In paragraph 22 of its Conclusion in 2005, theExecutive Committee came up with a somewhatdetailed, but tautologously phrased, guide to stateswhen considering local integration as an option.Perhaps the most fundamental observation made wasthat voluntary return of refugees remains the toppriority when ranking durable solutions to refugeeproblems.229 Integration requires commitment byboth receiving communities and naturalising refugeepopulation, and should be carried out in ‘a mannerthat sustains the viability of local communities’ lest

226 Available at: http://www.unhcr.org/excom/EXCOM/434d119f2.pdf, (para 22). Accessed on 19 November 2008.

227 Goodwin-Gill (n 39 above) 492.228 As above. 229 Goodwin-Gill (n 39 above) 489.

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there is excessive burden on such communities.230

Owing to the complexity of integration, there is needof appropriate ‘counselling and advice’ in order forrefugees to appreciate the three-prong dimension ofintegration; namely, legal, socio-economic andcultural aspects.231 The legal dimension, noted to beof ‘particular importance’, was expatiated by theExecutive Committee to include the provision bygovernment to refugees with proper documentationreflecting the current legal status in society. Thisstatus goes well beyond the refugee status alreadyyielded by the refugees who are being integrated, toinitialisation of the process of acquiring a ‘wide rangeof rights and entitlements’ available to citizens of thehost state with a view to achieving naturalisation asthe ultimate goal.232

As to the socio-economic dimension, emphasisshould be placed on assisting refugees to become self-reliant thereby relieving the state of the indefinite dutyto provide for refugees. The Executive Committeerecommended two approaches in assisting refugees tobecome self-reliant, legally and formally participatingin the employment of the host state. These are: first,by recognising the professional or vocationalqualifications some refugees acquired prior to entryinto the state of refuge and second, providing trainingprogrammes for skill development, and also provisionof rural agricultural land to those with land tillageexperience. These two would satisfy the socio-economic dimension of integration.

The third leg is the socio-cultural dimension,which needs not be underestimated. The adaptation ofrefugees to existing socio-cultural fabric of the hostcommunities requires ‘awareness raising activities’ inorder to eliminate ‘institutionalised discrimination’.Awareness campaigns and governmental policies,

230 Para 22 of the Executive Committee 2005 Conclusion. 231 Para 22 (k) of the 2005 Executive Committee Conclusion.232 As above.

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public statements and appropriate legislation aimed atpromoting tolerance of refugee population andcombat xenophobia and racism. This should precedeany local reintegration programmes. Analogouslytaken as preparing the ground for rain, thesepromotional activities prepare the host communitiesfor percolation of the refugee population into anotherwise indifferent or xenophobic community. In allthis, governments ought to involve as manystakeholders as possible acknowledging its limitationsand recognising the expertise of certain organisationsworking in the area of refugee management increating a conducive environment for successful localintegration.233

The mere fact that very little or no informationexists on national websites or other databasesregarding the nature and scope of the government’sself-proclaimed reintegration process bolsters theallegations that the process was more of lip serviceand damage control than a genuine local integrationprogramme sanctioned by international refugee lawguidelines outlined above. As already outlined,allowing victims of xenophobia to relocate fromtemporary refugee camps into societies, includingthose where they came from, does not to us amount toa genuine integration programme as contemplated byinternational law on the subject. An extremely ad hocprogramme that does not accord public scrutiny andassessment is as good as non-existent to say the least.

Therefore, if government insists that a localintegration programme took place, then we arefortified in asserting that, notwithstanding theabsence of a legal obligation to integrate, the processfell short of the minimum standards outlined inparagraph 22 of the Executive Committee Conclusionof 2005. This soft law framework was dedicated toenunciating principles governing legitimate local

233 As above.

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integration programmes. This is so more particularlyin that there was no recourse to the three-prongedapproach to integration, that is, the legal, socio-economic and cultural dimensions. No status furtherthan refugee status was conferred to those beingintegrated; no skill development programmes wereintroduced. Refugees were left to rely entirely on theiracquired qualifications with the vast majority relyingon availability of menial work in the construction andrelated industries.

One legal question remains to be determinedbefore one could judge the performance of the state inthis regard. The question is: Given the well acceptedfact that states have no obligation to integrate foreignnationals, on what basis then should the governmentbe judged? Our position emanates from a wellestablished principle of law that where there is no legalobligation to act, one attracts no liability by failing toact. However, notwithstanding the non-existence of alegal obligation to act, if one decides to act, theyshould be careful to ensure that their actions are inconformity to the expected standards of conductotherwise they attract liability in the process.

Without the sanction of a legal obligation tointegrate, South Africa decided to do so but failed tocomply with the minimum standards expected in localintegration. Had it not been that government’sconduct did not result in any proven injury or damagesto refugees and or foreign nationals who attempted tointegrate at the government’s instance, governmentcould have been found liable for such consequentialinjury and damages. In the absence of a legal butmoral obligation to comply with international law, andunless injury or damages could be establishedpertaining to government’s negligent conduct, wehave no basis to find South Africa in breach of anyobligations vis-à-vis the purported integrationprogramme.

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14 What are South Africa’ obligations, if any, in respect of preventing future recurrence of xenophobia violence?

In this last issue of the analysis, we explore what thegovernment has done and should do in order toprevent recurrence of violence triggered byxenophobic tendencies in host communities. As inmany other issues discussed above, very little dataexists to show what really transpired withingovernment structures in order to guarantee non-occurrence. Efforts were pretty much reactionary, inthe sense that they were channelled towards damagecontrol and limitation. Both oral and writtenstatements denouncing the violence were issued byvarious government departments including thePresidency. With similar vigour, institutionsestablished to consolidate democracy in South Africa,commonly known as Chapter 9 Institutions, such asthe South African Human Rights Commission, alsoissued public statements condemning the violenceand lack of tolerance amongst host communities andhave undertaken to investigate the causes of the waveof xenophobic attacks.234

The condemnation was not restricted to theborders of the South Africa. International humanrights oversight bodies such as the AfricanCommission went to the extent of adopting aresolution on the condition of migrants in SouthAfrica.235 The UNHCR, media and the civil society ingeneral went all out in frenzy criticising thegovernment for failing to prevent the occurrence ofthe violence on allegations that such intelligence hadbeen given to it. However, as already stated, thecumulative efforts of these stakeholders was directed

234 Available at: http://www.legalbrief.co.za/article.php?story=20090119155721923 (Accessed on 10 February 2009).

235 As above.

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towards taking care of the dead, injured and internallydisplaced migrants some of whom were abruptlyleaving the country, taking refuge in police stationsand places of worship.236 Consequently, theestablishment of the controversial refugee camps toshelter IDPs and issuing of temporary residencepermits were just but ways to manage the emergencythat caught the country flat-footed. There is no basisto suggest they were meant to be guarantees of non-recurrence.

In the issues discussed above, we went at length toshow South Africa’s obligations. It should be notedthat the very essence of remedial measures adoptedby a state following breach of its international lawobligations is two-fold, namely, guarantee of non-occurrence and reparations to those who sufferedadverse consequences of the state’s actions.Therefore, these two objectives are what therecommendations that follow seek to achieve.

236 The unfolding of the events during and immediately followingthe violence assimilated the 1994 Rwanda Genocide such thatarticles appeared in the press comparing the May 2008xenophobic violence to the Rwanda Genocide. In his well writtenarticle entitled ‘It feels like Rwanda all over again’ published inthe Pretoria News on 9 June 2008, Norman Taku, the DeputyDirector of the Centre for Human Rights, University of Pretoria,the writer scrutinized the violence from probable causes to themanner it was perpetrated and its adverse consequences andconcluded that there were more similarities than differencesbetween the xenophobic violence and the 1994 RwandaGenocide.

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15 Recommendations

For the reasons set out in previous sections, this studyfinds South Africa in violation of its legal obligations inrelation to the treatment of migrants. Settledjurisprudence requires the state to deploy bothcorrective and preventive measures to remedy thesituation. In this regard the European human rightssystem developed a remedial system thatdistinguishes individual measures from generalmeasures. The former was designed to correct thepersonal circumstances of the victim of the unlawfulstate conduct whilst the latter caters for the largerpicture by attempting, as far as possible, to put inplace measures that prevent recurrence of the sameproblem to any other person. South Africa’s responsefailed both in a general sense and on an individualbasis.

15.1 General recommendations

• The legal framework that regulates the treatmentof foreign nationals in South Africa consists ofvarious instruments at the national andinternational level. In order to provide adequateprotection for the rights of foreign nationals,South Africa should ratify all relevant instruments,including the Convention on the Rights of AllMigrant Worker and Members of their Families. Itwould also be prudent for the South Africa tosubsequently domesticate the provisions of thisinstrument.

• The process of state reporting, which is anecessary component of ratifying internationalinstruments, and under the APRM and UniversalPeriodic Review, should where relevant include thesituation of foreign nationals and the measurestaken to ensure that their rights are realised.Measures should be put in place to implement the

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concluding observations made by treaty bodies onthese reports.

• The government should make a concerted effort,for example through education and awareness-raising, to eliminate stereotyping, targeting,stigmatising and profiling on the basis of nationalorigin by politicians, officials educators and themedia, in all communication networks includinginternet and in society at large.

• South Africa, as the site where the negative eventsrelated to xenophobia took place, as well as thehost nation for the World Conference AgainstRacism, Racial Discrimination, Xenophobia andRelated Intolerance, should inspire and galvanisemore action on the realisation of the goals in theConference programme of action.

15.2 Immigration

• The vulnerability of foreign nationals isexacerbated by the lack of identification forpurposes of documentation. The process ofdetermining asylum applications should beexpedited. Allegations of ill-treatment andextortion of refugees, asylum seekers, andundocumented migrants should be investigatedand action taken against those found to becomplicit.

15.3 Violence

• In view of the xenophobic violence that took placein May 2008, the state is under an obligation totake appropriate measures to investigate andpunish the perpetrators of the violence, andprovide redress to the victims. Such measureswould additionally act as a deterrent to preventfuture violent manifestations of xenophobia.

• Ignorance as to how xenophobia manifests inviolence as distinct from other forms of violence

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may diminish the impact of law enforcementcapacities in dealing with this phenomenon. Aspecific legal regime or policy that defines theparameters of xenophobic violence and imposescriminal sanction over and above the existingframework should be implemented, including therole of law enforcement officials within thiscontext.

15.4 Repatriation

• Repatriation and deportation procedures shouldscrupulously adhere to due process standards andbe carried out in a transparent manner to precludethe possibility of refoulement (includingconstructive refoulement) of refugees and asylumseekers.

15.5 Access to socio-economic rights

• Access by foreign nationals to socio-economicrights such as housing was a contributing factor tothe eruption of xenophobic violence. Thegovernment should develop a clear policy in linewith its constitutional obligations on theentitlements of foreign nationals to socio-economic rights and social services in particular.Such a policy should be widely disseminated andshould be the basis of dialogue in communitiesthat have experienced or are likely to experiencexenophobia and society as a whole in order toclarify misconceptions about access to servicesand service delivery that lead to xenophobicsentiment and violence.

• The provision of humanitarian support in theaftermath of the violence left much to be desired,as is evident in a report by the Forced Migration

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• Studies Programme at the University of theWitwatersrand.237 The recommendations of thisand other relevant reports should be implementedas soon as possible in order to enhance the levelof preparedness in the event of a reoccurrence ofsimilar events.

15.6 Reintegration

• Although no obligation exists to integrate or re-integrate foreign nationals violently uprootedfrom communities during xenophobic violence, itis an option to be explored if locals and foreignnationals are to co-exist peacefully. Thegovernment should develop and implement a clearpolicy on when and how such integration shouldtake place, including clear responsibilities andrelevant actors.

• Adequate measures should be taken to ensure thatin situations where integration will take place boththe foreign nationals and the receivingcommunities are sufficiently prepared toaccommodate each other economically and socio-culturally.

237 Forced Migration Studies Programme (n 33 above).

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